The Modi-Chandrachud Aarti Episode and Erosion of Public Trust in Judiciary

"In 1956, Setalvad was in Hague to appear before the International Court. The Indian Ambassador there came with a message that Sir Mohammed Zaffarullah Khan, one of the Judges at the Court, was anxious to meet Setalvad for old times' sake. Setalvad responded firmly by saying that it would be wrong for him to meet a sitting Judge even socially." (page number 6 of? Canons of Judicial Ethics, R C Lahoti, Universal Law Publishing Co Pvt Ltd, New Delhi)

While delivering the inaugural lecture on Motilal C Setalvad, the then Chief?Justice of India, R C Lahoti mentioned the above anecdote about Setalvad. It is difficult to accept that the erudite person of the stature of D Y Chandrachud did not come across the mentioned anecdote. In the same book, Lahoti narrates one more anecdote that requires mention in this write-up. " While staying at 11, Safdarjung Road in the capacity of Attorney General for India he had two telephones, one official and one personal. Mrs. Setalvad was having tea with him and Setalvad just left the hall to make a call. The guest present wondered why he did not make a call from the telephone which was there itself. Mrs. Setalvad explained that Setalvad always made his personal calls from his private telephone and the telephone near hand was the official one."

It is important to mention that Chandrachud practised as an advocate in Bombay High Court and hence it is not unusual to assume Chandrachud must have heard, discussed and shared anecdotes of Motilal Setalvad's ethics. The emphasis of both anecdotes is the distinction between professional obligation and private life in the issues of conflict of interest.??

In legal parlance, is there any ratio between the two anecdotes and the episode of Narendra Modi, Prime Minister of India and head of the executive visiting residence of Dhananjay Y Chandrachud, the Chief Justice of India and head of judiciary? A conjoint reading of the two episodes comes quite close to the incident of Modi?visiting Chandrachud's residence (hereafter, the incident will be mentioned as "Modi-Chandrachud episode"). It is important to discuss the episode because more than Modi it is about Chandrachud's character that is at stake. Lahoti in his book mentions, " A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State. But a Judge must keep himself absolutely above suspicion; to preserve the impartiality and independence of the judiciary and to have the public confidence thereof."

There are four important questions that I wish to answer in this write-up:

1. What is so wrong about the incident? After all, Modi and Chandrachud often meet at various events.
2. What if Modi visits Chandrachud's residence uninvited and as a courtesy Chandrachud welcomes Modi? We do have a cultural norm of "atithi devo bhav - Guest is God,"
3. What if Chandrachud invited Modi to a private event? Judges too are social beings, and they too have a right to invite anybody at residence during private celebrations, and
4. Are there any guidelines to deal with the incident?

[There could have been a fifth question of "Why did Modi release the pedicured video of arti to the public", but I have not dealt with it here because it is more about intent and motive and in this article, I have restricted myself to issues that deal with conduct and behavior.]

The first three questions are more about pragmatics. The last question is about praxis and is about 'theory' of ethics of the judiciary. The incident has shaken the conscience of the public at large. The video of Modi synchronised?swaying of light (popularly known as aarti but it is only one component of arti) to Lord Ganesha and Chandrachud singing "Jai Ganesh Deva - Glory to Lod Ganesh" is shockingly true. Modi and Chandrachud participate in various public functions. There are photographs of Modi and Chandrachud performing activities together in state organised?public functions,?for example offering speeches,?holding books or momento and so on. However, the participation of both is in individual capacity. It does not create a public perception of "togetherness" and "synchronization." The distance in public events is expressed through the sequence?in which both perform activities. In the extant case the sequence has been replaced by complementation, swaying of lights is being complemented with a bhajan. In Hindu ritual scheme, performance of aarti is an integration of minimum four senses, auditory, visual, olfactory and tactile, through singing and listening of bhajans, swaying lights and alighting incense sticks. Thus, aarti performance by Modi and Chandrachud depicts a picture of integration and togetherness of executive and judiciary, which is against the scheme of the Constitution of India.

The supporters of Chandrachud argue Modi might have "gate crashed" into Chandrachud's aarti event. In my opinion the genesis of the idea of Modi "gate crashing" has a basis in Modi's visit to Nawaj Sharif's house without an invitation. Modi also regularly?highlights he is no fan of official protocols and animatedly narrates protocol breaking incidents. I suspect "gate crashing" is possible in this case. It is not clear whether Modi visited the official residence of Chandrachud or at some other residence of Chandrachud, but it is a residence as partner of Chandrachud is also present in the video. Chandrachud has a Z category of security, and I suspect anybody can enter inside his residence (of any category) without prior information and permission of the security personnels of Chandrachud. Assuming but not accepting, Modi "gatecrashed" Chandrachud's residence. Did he "gatecrashed" alone or with the videographers? It is not OK but for a moment?assuming the security personnels of Chandrachud cannot stop Modi, they ought to have stopped entry of the videographers. Who allowed videographers inside the residence of Chandrachud? Why were videographers allowed inside the residence of Chandrachud?? By the very nature of the video, it appears that the visit was intentional and allowing Modi and photographer was willful. This visit was not accidental, it was planned and designed.?

The second support of Modi-Chandrachud episode is with the reference to celebration of a private event. The argument of private events is related to the right of human beings to have a private life,?including observing and participating in religious?rituals. The idea of private life of public personalities is different. Chandrachud is Chief Justice of India 24X7, in the Supreme Court and also at his residence. There are instances when the residence of a judge transforms into a Court. The counterargument would be residence being transformed into court are situations of emergency. This was a leisure situation. Irrespective of the nature of the situation the CJI is CJI for the entire day and the day is defined in service rules of public officials as "midnight to midnight." Therefore, CJI is on official duty 24X7 and in his capacity as a CJI he is an institution, and he cannot invite any person in individual capacity. CJI has a registry and all communication with CJI is through the Registrar, Supreme Court [In case if you wish to confirm please visit the web site of the Supreme Court and check contact details mentioned]. During Supreme Court proceedings, CJI often asks the pleading?person to write an email?to him through the registry. Even if Chandrachud has abilities and instruments to invite Modi, can Chandrachud be selective in his invitations? Can any other litigant, petitioner/appellant/defendant be invited by CJI at his residence to participate in a private event. Modi as Prime Minister and head of executive is a litigant in the Supreme Court.?

Now, we know that in all the three answers indicate that the Modi-Chadrachud episode does not augur well for the independence of the democratic institutions. However, we are yet to discuss what are the formal rules to evaluate the incident. Modi is a politician, and he can do anything as a politician to be in power, gain limelight and create an optics. However, Chandrachud has no such liberty. He is 'bound' by judicial propriety and discipline. In India, there are several case laws that highlight?the value of integrity and judicial proprietary. The Supreme Court in?Tarak Singh vs Jyoti Basu, reported in (2005)1 SCC 201 observed, "Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary took utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the judicial-delivery system resulting in the failure of public confidence in the system. It must be remembered that woodpeckers inside pose a larger threat than the storm outside.” The video hits at the very idea of integrity of the institution of judiciary. Especially, as I have discussed, the episode appears to be planned and motivated.

Kurian Joseph, then Chief Justice of Himachal Pradesh High Court and later one of the brother justices of Chadrachud cites?Tarak Singh (supra),?“There is nothing wrong in a Judge having an ambition to achieve?something, but if the ambition to achieve is likely to cause a?compromise with his divine judicial duty, better not to pursue it.?Because, if a Judge is too ambitious to achieve something?materially, he becomes timid. When he becomes timid there will be?a tendency to make a compromise between his divine duty and his?personal interest. There will be a conflict between interest and duty," in K.P.Singh vs. High Court of H.P. & ors. in LPA No. 163 of 2009, decided on 21.4.2011, by the Division?Bench of?H.P. High Court.?

There are numerous case laws and uncounted books on ethics of the judiciary. There is also no dearth of cannons and codes on the conduct of judges. However, I restrict my write-up?to Indian context.?Lahoti in his book/speech on ethics titled "Canons of Judicial Ethics" mentions: "I would choose to confine myself by referring to three of them:?

(i) Restatement of Values of Judicial Life adopted by the Chief Justices' Conference of India, 1999;?

(ii) The Bangalore Principles of Judicial Conduct, 2002; and

(iii) The Oath of a Judge as contained in the Third Schedule of the Constitution of India."?

The first document is available on the website of the Supreme Court of India with title "RESTATEMENT OF VALUES OF JUDICIAL LIFE (As adopted by Full Court Meeting of the Supreme Court of India on 7th May, 1997)." It is a three pages document containing 16 paragraphs?in seriatim. The first paragraph of the Restatement that is also the most important paragraph mentions, " 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"(emphasis provided).

The idea of justice has been closely linked with behavior and conduct. The latter is once again highlighted in paragraph number 6 of the Restatement, "A Judge should practice a degree of aloofness consistent with the dignity of his office" (emphasis supplied). The final paragraph of the Restatement mentions, " 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 (emphasis provided)." Thus, the main idea of the Restatement is about behavior and conduct of judges, both are visible elements and create perception of justice. Modi-Chadrachud episode raise many questions because the incident hits core ideas of the Restatement.

The idea of behavior and conduct has been mentioned as proprietary in?The Bangalore Principle of Judicial Conduct, 2002. Chapter 4 titled Propriety mentions “Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge (emphasis supplied).” In the same Chapter in Section 4.1, “4.1. A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities (emphasis supplied).” It is not only proprietary but "appearance of propriety" that is at the core of judicial ethics. It is about visuals and optics of propriety that creates and feeds perception about the justice delivery system. The visuals of Modi-Chandrachud episode in no uncertain terms creates "appearance of impropriety" and the same ought to have been obligatorily avoided.

Lahoti has very nicely mentioned how judges should behave in private. He mentions " When a judge sits on trial, he himself is on trial. The trust and confidence of 'we the people' in judiciary stands on the bedrock of its ability to dispense fearless and impartial justice. Any action which may shake that foundation is just not permitted. Once having assumed the judicial office, the judge is a judge for 24 hours. It is a mistaken assumption for any holder of judicial office to say that I am a judge from 10 to 5 and from 5 to 10 it is my private life. A judge is constantly under public gaze. " Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judge' s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill afford to seek shelter from the fallen standard in the society." (emphasis provided)

Item number IV in Schedule III of Constitution of India mentions oath of Chief Justice of India, " I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws (emphasis provided)," is a condensed code of judicial ethics and it need no further code. I have purposefully not highlighted 'faith' as I have not dealt with the issue in this write-up though public display of 'faith' to a religion is no less controversial. In this write-up I have discussed more elaborately on allegiance and hence I have highlighted it. The video creates an impression of allegiance to something that is not according to the scheme of the Constitution of India. Chandrachud is CJI because of the Constitution of India and not because of Modi or anybody else and hence his duty 24X7 is to uphold the constitution and not to publicly sing bhajan with the head of the executive.?

Therefore, aarti episode of Modi-Chandrachud appears to have eroded the "public trust" and?the optics of the video creates a perception of decadence and rot in the democratic institutions.

?