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Former Chief Justice of India, DY Chandrachud, has defended his decision on Article 370, stating that it was always meant to be a “transitional provision” in the Indian Constitution. He argued that the provision was intended to eventually dissolve and merge with the rest of the Constitution over time.
Speaking in an interview with BBC journalist Stephen Sackur, Chandrachud responded to criticism from legal scholars who were disappointed with his ruling on Article 370. The provision, which granted special status to Jammu and Kashmir, was revoked by the Indian government in August 2019. A five-judge bench of the Supreme Court, led by Chandrachud, upheld this decision on December 13, affirming the President’s power to abrogate Article 370.
A Question of Time: Was 75 Years Too Short?
During the interview, Sackur asked Chandrachud whether he believed that 75 years was too short a period to revoke Article 370, considering its historical significance. Chandrachud explained that Article 370 was originally part of the transitional provisions in the Constitution and was never meant to be permanent. He stated:
“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 arrangements’ 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.”
The Supreme Court’s View on Article 370 Abrogation
Chandrachud explained that the Supreme Court recognized the power of an elected government to revoke a provision that was meant to be transitional. He stated that if the government, which is accountable to the people, decides to remove such a provision, it is legally valid.
Furthermore, the Supreme Court emphasized the need to restore democracy in Jammu and Kashmir, setting a timeline for the revival of its democratic process. Chandrachud remarked:
“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 we 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.”
Judicial Role and the Transformative Vision of the Constitution
Discussing his tenure as Chief Justice, Chandrachud stated that his primary responsibility was to ensure the transformative potential of the Constitution was realized. He explained that his focus was on delivering judgments that aligned with constitutional values while also managing administrative responsibilities.
“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.”
Expanding Access to Justice
Chandrachud also highlighted how the Indian judiciary has broadened access to justice in the past 75 years, ensuring that any individual citizen can approach the courts. He emphasized the Supreme Court’s role as the final court of appeal and its function in handling a wide range of cases.
“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.”
Addressing Concerns of Judiciary Dominance by Elite Groups
Responding to concerns about the Indian judiciary being dominated by elite, male, upper-caste Hindus, Chandrachud rejected the notion. He pointed out that the composition of the judiciary is changing, with a growing number of women entering the legal profession at the grassroots level.
“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 also noted that the higher judiciary reflects the legal profession as it was a decade ago, but with increased access to legal education, more women are now entering the judiciary.
“What’s happening now, as the reach of education, particularly legal education, has reached women, is 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.”
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