The 1,045-page judgement that paved the way for the construction of a grand Ram temple at a place where the Babri Masjid was demolished by VHP and BJP-led protestors stands as a political-legal milestone in the history of India.  It came on November 9, 2019, with an unprecedented, unsigned, unexplained “addenda”, and was delivered by a five-judge bench comprising the then Chief Justice of India (CJI) Ranjan Gogoi (who retired later that month), Justices S A Bobde, D Y Chandrachud, Ashok Bhushan and Abdul Nazeer. Never before was a more complicated case before the courts with material going back several centuries, spanning land disputes, issues of faith, archaeological artefacts, and a violent and illegal demolition of the Babri Masjid that tore apart the secular fabric of independent India. The judgement itself highlighted the significance of the matter in these words: “This Court is tasked with the resolution of a dispute whose origins are as old as the idea of India itself. The events associated with the dispute have spanned the Mughal empire, colonial rule and the present constitutional regime.”  

It is this vexed case that the current CJI Justice D.Y. Chandrachud has reminisced about at a meeting in Khed, Maharashtra, bringing up once again the complexities of the matter but speaking this time about how he turned to God for a solution in the case. Justice Chandrachud was quoted by PTI as having said, “Very often we have cases (to adjudicate) but we don’t arrive at a solution. Something similar happened during the Ayodhya (Ram Janmabhoomi-Babri Masjid) dispute which was in front of me for three months. I sat before the deity and told him he needs to find a solution.”

This is an extremely loaded statement. The CJI, known to be scholarly in matters of law and as highly-regarded as he has been, would surely have known that such a remark would lead to many questions and open up new controversies on the judgement itself, and how the five-judge bench arrived at a consensus if at least one of them was admittedly listening to authority beyond the Constitution of India. We still do not officially know who authored the final verdict, which was presented as a consensus “voice of the court” but it has been speculated that the author was Justice Chandrachud. Thus, the final tome that came from the bench can be now seen as the authorship of God, the position made clear and attested by none other than the CJI. This now becomes a curious case of God having decided on a case involving the House of God, and many questions immediately arise.

How would history view this judgement

A paper in the Fordham Law Review puts the position of a judge in such a case rather succinctly. Titled ‘Jurisprudence and Theology’, the paper by Prof. Edward B. Foley notes: “The duties of judges must be limited to identifying the law, as promulgated by the authoritative legislative bodies. Judges are specialists, trained in this skill. They should not confuse themselves with priests, who are also specialists, trained in the very different skill of identifying and interpreting God's will.”

Did Justice Chandrachud tell his brother judges that he was listening to God, and if so, what influence would that or did that play on the judgement with the others on the bench?  It would be presumed that Justice Chandrachud, a practising Hindu, would look up to a Hindu God for a solution in a case that was won hands down by the Hindu side in the matter. How would the matter look if this was a Muslim judge praying at a mosque and asking his God to write the judgement in the matter? And how would history look at this judgement which can now be seen as taking the form of a judicial robing of a religious edict emanating from a source that is not the constitution? Further, how does this stand against the oath of office, which states that the CJI would “uphold the Constitution and the laws” of the land rather than the voice of an authority that he may see as higher. And how does it hold against the document titled “Restatement of values of judicial life” which was adopted by a full court meeting of the Supreme Court of India on 7 May, 1997. The first item on that document states: “Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people's faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.”

Not a happy ending to CJI's career

Apart from doing disservice to the sanctity of the judiciary and the rule of law, and poorly serving his fellow judges who were on the bench in the Ayodhya matter, the remarks also pull the CJI into avoidable controversies of the kind that he appears to have attracted in recent times. The Ganesh worship at the CJI’s home, with Prime Minister Narendra Modi leading the prayers, duly publicised on social media, with the CJI and his wife standing by, have already raised questions. This perception of closeness between the executive and judiciary undermines not the executive but the judiciary. As the 1997 “values” document notes: “A Judge should practice a degree of aloofness consistent with the dignity of his office.”

The conduct of the CJI has thus invited some questions from even his admirers, and given rise to a new conversation on the motives for this distinctly religious bent being brought out openly in public debate, given that the CJI recently visited the Ram temple at Ayodhya. This is not good news for the legal system and the two sides in the Ayodhya judgement -- the winning side must live with the prospects of a judgement being attacked as more flawed than it was thought to be earlier, while all those disappointed with the original judgement can convince themselves and forcefully now argue that justice was not done. That means that a matter considered settled, however imperfectly, is now unsettled. And that cannot be a happy ending of the case or the remarkable career of the 50th CJI, who retires on November 10, 2024.

(The writer is a journalist and faculty member at SPJIMR, Mumbai. Views are personal. By special arrangement with The Billion Press)