In BBC Interview, Ex-CJI DY Chandrachud Addresses Legal Scholars’ Views on Article 370 Verdict

Former Chief Justice of India DY Chandrachud defended his stance on Article 370, asserting that it was always intended as a “transitional provision” in the Constitution. He questioned whether 75 years was too short a period to repeal such a provision, emphasizing that it was meant to gradually dissolve and integrate with the rest of the Constitution over time.

Chandrachud was responding to BBC journalist Stephen Sackur’s question in an interview about the disappointment expressed by legal scholars regarding his stance on Article 370.

A Constitution bench of the Supreme Court, led by Chandrachud, unanimously upheld the President’s power to abrogate Article 370 on December 13, 2023. The decision resulted in the reorganization of Jammu and Kashmir from a full-fledged state into two union territories and the removal of its special privileges.

Sackur 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. Explain to me why you took the decision you did.”

Chandrachud explained that, as the author of one of the judgments in the Article 370 case, a judge must exercise restraint when discussing their own decisions. He clarified that Article 370 was originally part of the Constitution’s transitional provisions and was intended to eventually merge with the broader framework.

“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,” he replied.

He further stated that the Supreme Court acknowledged the authority of an elected government to repeal a provision that was originally meant to be temporary. He also emphasized the court’s directive to restore the democratic process in Jammu and Kashmir within a set timeframe.

“We said that what was intended to be a 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,” he added.

Chandrachud acknowledged that the full impact of his decisions would only become clear in the future but stated that he had a clear plan for his tenure as Chief Justice. He highlighted his focus on delivering judgments that would help realize the Constitution’s transformative potential while also managing the judiciary’s 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,” said Chandrachud.

He noted that over the past 75 years, access to justice has expanded, allowing individuals to directly approach the courts. He emphasized the Supreme Court’s role as the final court of appeal, handling a wide range of cases, including appellate matters.

“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.

When asked whether the Indian judiciary was dominated by elite, upper-caste Hindu men or suffered from a dynasty problem, Chandrachud disagreed.

“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 pointed out.

He explained that the composition of the higher judiciary reflects the state 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.