In BBC interview, DY Chandrachud asked about legal scholars' reaction to Article 370 verdict. Ex-CJI's reply

Former chief justice of India DY Chandrachud questioned whether 75 years was too short a period to abrogate Article 370, which was a ‘transitional provision.’

Former Chief Justice of India DY Chandrachud defended his stance on Article 370, saying it was always intended as a “transitional provision” in the Constitution.

Former Chief Justice of India DY Chandrachud in an interview with Stephen Sackur on BBC's HARDtalk.((Screengrab))

He questioned whether 75 years was too short a period to abrogate such a provision, emphasising that it was meant to fade away and merge with the Constitution over time.

Chandrachud was responding to BBC journalist Stephen Sackur's question in an interview about legal scholars' disappointment with his stance on Article 370.

A Constitution bench of the Supreme Court, headed by Chandrachud, on December 13 unanimously upheld the power of the President to abrogate Article 370 in August 2019.

This decision led to the reorganisation of the full-fledged state of Jammu and Kashmir into two union territories and the removal of its special privileges.

Chandrachud was asked, “Article 370 was part of the Constitution, which guaranteed the special status, the autonomy of the state of Jammu and Kashmir, now that had been out the place of the very inception of the modern state of India. You agreed that the government had a right to abrogate Article 370. Many legal scholars were deeply disappointed with your decision because they felt you had failed to uphold the Constitution. Explained to me why you took the decision you did.”

Stephen Sackur also questioned how legal scholars felt that the decision failed to uphold the Constitution.

Chandrachud explained that as the author of one of the judgments in the Article 370 case, a judge must refrain from defending or critiquing their own decisions. He clarified that Article 370, originally part of transitional provisions in the Constitution, was meant to eventually fade away and merge with the rest of the Constitution.

“Since I was the author of one of the judgments in the case, a judge by their very nature of profession has some restraints on either defending or critiquing their judgments… Article 370 of the Constitution when it was introduced into the Constitution at the birth of the Constitution was part of a chapter which is titled ‘transitional arrangments’ or ‘transitional provisions’. It was later renamed as ‘temporary and transitional provisions’, and therefore at the birth of the Constitution, the assumption was that what was transitional would have to fade away and have to merge with the overall text, the context of the Constitution. Now is 75 plus years too less for abrogating a transitional provision,” replied Chandrachud.

He said the Supreme Court acknowledged that if the elected government decides to abrogate a provision meant to be transitional, it is acceptable.

He also highlighted that the Supreme Court emphasised the need to restore the democratic process in Jammu and Kashmir, setting a timeline for its restoration.

“We said that what was intended to be transitional provision, if the government which is accountable to the people and the elected government takes the view, the Centre that were are abrogating what was essentially transitional that is fine. Second, the Supreme Court said that the democratic process in Jammu and Kashmir must be restored effectively setting a timeline for that,” he added.

Chandrachud also mentioned that while the full impact of his actions would only be seen in the future, he had a clear plan for his tenure as Chief Justice.

He claimed to have focused on delivering judgments that would realise the transformative potential of the Constitution, while also fulfilling his role as the administrative head of the judiciary.

“A lot of answers would await posterity, I guess, but speaking for myself, I had laid out a plan for the time I would be Chief Justice. The first was, of course, in terms of the judgments I would deliver. A Chief Justice is, first and foremost, a judge, and then second, you are also the administrative head of the Indian judiciary. So, I first and foremost wanted to, in my judgments, realise the full transformative potential of the Constitution, which I believe we tried to do,” said Chandrachud.

He added that over the past 75 years, access to justice has been broadened, allowing citizens to approach the court. He highlighted the Supreme Court's role in handling various cases, including appeals, and emphasised that it serves as the final court of appeal.

“In terms of the diversity of cases that we handle, we have broadened access to justice over the last 75 years, so any individual citizen can come to court. And then you are dealing with honorary cases in appeals as well. We are also the final court of appeal," the former CJI said.

Responding to a question on whether the Indian judiciary suffers from a dynasty problem or is dominated by elite, male, upper-caste Hindus, Chandrachud disagreed.

He pointed out, “If you look at the lowest levels of recruitment to the Indian judiciary, the district judiciary, which is the base of the pyramid, over 50 per cent of the new recruits coming into our states are women. There are states where the recruitment of women goes up to 60 or 70 per cent.”

He explained that the higher judiciary now reflects the status of the legal profession from a decade ago. “What's happening now, as the reach of education, particularly legal education, has reached women, that gender balance you find in law schools is now reflected in the lowest levels of Indian judiciary. In so far as gender balance is concerned, you find an increasing number of women coming into district judiciary and these women will be climbing up,” he said.