Justice DY Chandrachud is Sehwag of Supreme Court, but does he need to be Dravid instead?

We have had a rock star RBI governor. Why not one at the Supreme Court as well?

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Updated: Oct 04, 2018, 11:07 AM IST

There is something in the way Justice Dhananjaya Y Chandrachud delivered his rulings last month that reminded me of Virender Sehwag. Now, it might be strange to compare a sitting Supreme Court judge with a hard-hitting batsman, but there was something in the manner the judge delivered his quotable verdicts that reminded one of crackling shots on a cricket ground. From Aadhar to adultery, from human rights to the entry of women into the Sabarimala temple, there was plenty of stroke play in the mighty pen of the judge.

That reminded me of another public figure, the former Reserve Bank of India governor Raghuram Rajan, who often reminded me of Rahul Dravid. Both Chandrachud and Rajan are now darlings of middle-class liberals. However, apart from their smart looks and learned ways, there is plenty that distinguishes them, and the best way is to draw a parallel with Sehwag and Dravid, two admired cricketers with vastly varying styles. Rajan, like 'The Wall' that he is, has been a man of few words, much dignity, soft-spoken precision and strong character. You have to watch him closely to admire him. Chandrachud, on the other hand, was flamboyant in his glory, and if you don't mind, some of his strokes are way too risky -- even if they hit the ball out of the park. Much like those of Sehwag. Dissenting notes are to court verdicts what a lofted shot is in a cricket match: delight to watch but precarious all the same.

By placing personal liberty above the government's powers to curb fundamental rights in the Aadhaar and Bhima-Koregaon violence case, Chandrachud has been way ahead of his times. He quoted Canadian poet-singer Leonard Cohen to uphold the right to gay sex. His verdict on adultery extensively quotes feminist scholars.

In that sense, he reminded me of his father, Justice YV Chandrachud, who delivered a controversial verdict on maintenance for a divorced Muslim woman, Shah Bano, in 1985. Not only did the elder Chandrachud uphold payment of maintenance for Shah Bano and overruled the All India Muslim Personal Law Board, he also spoke of the need for a Uniform Civil Code, which is listed among directive principles of the Indian Constitution but not an obligatory law. The then Rajiv Gandhi government, which had a brute majority in parliament, simply overturned the judgment by changing the divorce law for Muslim women. I wonder if that was a case of judicial overreach that resulted in a legislative backlash.

The younger Chandrachud is being cited for how he overturned his own father's ruling regarding the decriminalisation of adultery under Section 497 of the Indian Penal Code. The son also overturned his father's verdict of privacy not being a fundamental right. However, like his father in the Shah Bano case, he seems to think well ahead of his times. My fear is that like in the Shah Bano case, an overzealous judge may unleash a backlash. Just as a good batsman should look at the field placings before playing a shot, a judge is perhaps wiser choosing his words carefully because the hard fact is that social and political realities have to be borne in mind to avoid the kind of backlash the Shah Bano verdict resulted in. It is true that we have come a long way since then to have an Ordinance passed to strike down the "triple talaq" divorce among Muslims. But then, the society seems ready for it now.

Are we ready for a similar show on adultery? Now, there are two parts to the verdict on the issue. One rightly dismantles the patriarchal provision under which the husband is made the authority to seek punishment or not if the wife has sexual relations outside of marriage. But the nuance here is that it may be treading on sensitive ground when it concerns the sacred idea of fidelity in marriage in popular conversations. There have been enough WhatsApp jokes to suggest that the decriminalisation of adultery is being casually understood as a permission for infidelity. No sir, the verdict says adultery is not a crime. It does not say it is not an offence.

"It is commonly accepted that it is the man who is the seducer and not the woman," the elder Chandrachud had said in upholding the now discarded adultery law. 

In contrast, Junior Chandrachud said: "It is common to find instances of working women, who take care of the home, get beaten up by their husbands, who don't earn. She wants divorce. But the matter remains pending in court for years. If she looks for love, affection and solace in another man, can she be deprived of it?"

Now, there is nothing in the recent verdict's text that to me seems unfair, but we have had the chairperson of the Delhi Commission of Women, Swati Maliwal, saying the verdict had "given licence to married couples for adulterous relationships. What is the sanctity of marriage then?"

In the Sabarimala temple verdict that upheld the entry of women, DY Chandrachud said: "Merely because a deity has been granted limited rights as juristic persons under statutory law does not mean that the deity necessarily has constitutional rights." 

I am just wondering what that implies in a future hearing on the Ram temple in Ayodhya, which has thus far been seen as a property dispute in strictly judicial terms.

Overall, I do find Justice DY Chandrachud strong in his language of path-breaking justice, but unlike, say, Raghuram Rajan on bad loans and demonetisation, he errs on the side of stroke play rather than a soft expression of hard views. In the current political atmosphere of the country in which dissent passes for anti-national conduct and conservatism passes for culture, I sometimes feel a need for a Dravid-like understated precision over Sehwag-like shots. Not because Chandrachud is wrong but because in a complex socio-political environment, there is many a slip between the cup and the lip. Is there a right-wing way parliament can overturn the thoughts of Chandrachud Junior the way it reversed his father's ruling?

But then, Sehwag has had a great career, and there are fanboys and fangirls waiting for Justice Chandrachud to ascend the Chief Justice's chair. We have had a rock star RBI governor. Why not one at the Supreme Court as well?

(Madhavan Narayanan is a senior journalist who has covered politics, diplomacy, business, technology and other subjects in a long career that has spanned organisations including Reuters, Business Standard and Hindustan Times. He is currently an independent columnist, editor and commentator. He is listed among the top 200 Indian influencers on Twitter. He tweets as @madversity)

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)

 

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