An unconstitutional bonhomie between the Prime Minister and the Chief Justice of India violates Canons of Law, Ethics and Constitutional Morality
By PUCL NATIONAL
The visit of Prime Minister Narendra Modi to the house of Chief Justice Dhananjaya Chandrachud on 12th September, 2024 to participate in Ganesh Aarti has triggered a constitutional controversy due to its cavalier disregard for foundational constitutional principles.
The controversy refuses to die down with both the BJP and the Prime Minister doubling down in defence of the same. The BJP spokesman has argued in a rhetorical fashion as to ‘why should not the different pillars of democracy be friends? Should they be enemies?’ The Prime Minister has sought to politicize the response by stating that the Congress ecosystem was angry because he participated in a Ganapati Pooja.
Both defenses refuse to understand that the ‘controversy’ which this visit has invoked is not about ‘different pillars of democracy being friends’ but about an unconstitutional bonhomie. It is not about an invidious attack on the participation in a Ganapati pooja, but about the propriety and indeed the constitutional morality which the visit violates. It is fundamentally about questions of law, ethics and constitutional morality.
There are two fundamental principles of the Constitution which are relevant to understand the issues which arise from the visit. First, is the principle of separation of powers and second is the principle of independence of judiciary. Both have been held by the Supreme Court itself as fundamental to the governance of the country.
The Supreme Court has extensive judicial review powers which entitles it not merely to strike down administrative actions but also legislations and even Constitutional Amendments. On a daily basis before multiple benches of the Supreme Court including the Bench presided over by the Chief Justice, the Union of India is a litigant. Mr. Modi, in his capacity as a Prime Minister is the Chief Executive of the Union of India. Besides, in his capacity as the Head of the ruling Parliamentary coalition, he is also virtually the head of the legislative wing.
It is therefore vital that the constitutional ‘Laxman Rekha’ which governs the relationships between the two wings must not be crossed and must not even be perceived to be crossed by two individuals who in their person represent the executive and the judiciary.
One can have no objection to religious beliefs which either the Chief Justice or the Prime Minister hold. Similarly one cannot object to Justice Chandrachud or the Prime Minister performing Ganesh Aarti at their home or elsewhere. They are equally entitled to freedom of conscience and religion as any ordinary citizen. One can also not have any objection to their meeting in public functions where they are meeting in their official capacities. One may also not have serious objection to their meeting at a private function where large number of other members of public are present – such as a wedding or an Iftaar party. However, a personal invitation to the Head of the executive by the Chief Justice for a private exclusive religious ceremony at home undoubtedly raises doubts about whether the conduct is within the four corners of the constitution.
This would be the case irrespective of whether a cameraman was present or not and whether this was widely circulated in the social media or not. Of course, the constitutional error is compounded by this private meeting being video- graphed and circulated as if to communicate that there is nothing wrong in personal relations between politicians and judges, even when the same judges are adjudicating virtually on a daily basis on the decisions of the executive. It bears noting that the Union of India is the largest litigant in the Supreme Court.
It is of course possible for a judge to have personal relations with either a private or a public figure. But then they follow the extremely important convention of recusing from cases in which they know a party. Recusal is not because of actual bias but to avoid even the very perception of bias.
The message which has gone out is of an unconstitutional bonhomie between the judiciary and the executive at the highest levels. This severely compromises the perceived ability of the judiciary to ask difficult questions to the executive and ensure that it does not transgress the limits imposed by the Constitution. In fact, the unconstitutional bonhomie sends a signal right down the judicial hierarchy that it is perhaps better not to take too seriously the principle that ‘a judge should practice a degree of aloofness consistent with the dignity of his office’. This principle was articulated as a ‘Restatement of Values of Judicial Life’ which was adopted by the full Court meeting of the Supreme Court way back on 7th May, 1997.
The fact that the Chief Justice not only did not demonstrate aloofness, but instead demonstrated an unconstitutional bonhomie, conveys that it is indeed acceptable to fraternize with the executive. It is a tragedy that the message that these values, adopted by no less than the full court, can be bypassed should have been sent by no less than the Chief Justice of India.
The other values which a judge is enjoined to follow as per Paragraph 16 of the ‘Restatement of Values of Judicial Life’ states: “Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is
unbecoming of the high office he occupies and the public esteem in which that office is held.”
Similarly, the Bangalore Principles of Judicial Conduct, 2002, which have been ratified by the Economic and Social Council states the following:
“1.3 A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.
2.2 A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.
3.2 The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not only be done but must also be seen to be done.
4.2 As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
4.6 A judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.”
Both constitutional morality and ethics dictate that Judges should follow these values in full.
It is unfortunate that the Prime Minister’s personal visit to the Chief Justice’s house breaches the above principles. Undoubtedly in the past such episodes have happened like Bombay High Court Chief Justice M.C. Chagla’s letter to Prime Minister Jawaharlal Nehru in 1953 and Justice Bhagwati’s infamous letter to Prime Minister Indira Gandhi in 1980. But these have been criticized in the past and they do not in any way justify the recent publicized visit of the Prime Minister to the Chief Justice’s house, causing a breach in the principles of separation of power and independence of judiciary which are primary constituents of rule of law and democracy.
By breaching the above principles, what has come under a shadow is the commitment to Constitutional morality by those at the very apex of the Indian state. As Babasaheb Ambedkar reminded us, ‘Constitutional morality is not a natural sentiment, it has to be cultivated’. It is expected that those in high constitutional office will nurture this delicate plant called constitutional morality and not pull it up by its roots.
We seriously urge the Chief Justice to make constitutional recompense and repair the shaken faith of the common person in democracy, rule of law and the separation of powers by ensuring that henceforth there is a scrupulously adherence to the Bangalore principles and the ‘Restatement of Values of Judicial Life’.
Kavita Srivastava, President
V. Suresh, National General Secretary