A critique of Justice D.Y. Chandrachud’s art of justicing
Justice Chandrachud is credited with progressive judgments during his long tenure in the high courts and the Supreme Court, but his disclosure of prayer to God has left some disquieting and some even repulsed, writes Mohan Katarki.
Published on: 26 November 2024, 05:06 am
DHANANJAYA Yeshwant Chandrachud has retired from the highest judicial office of the Chief Justice of India. However, he has left the seat of justice raising a fundamental question of what drives a judge to form an opinion and decide contested cases.
The question has been raised because he disclosed that he had prayed to God for guidance in determining the politically sensitive litigation between Hindus and Muslims that involved an issue of who is entitled to the possession of land in Ayodhya for religious purposes.
It is a practice for lawyers in India and other commonwealth jurisdictions to address judges of superior courts as ‘Milord’ or ‘My Lord’. The phrase is a respectful form of address borrowed from the French word ‘Milor’, meaning a nobleman.
The phrase does not convey that judges are divinity or avatars of Ishwar (incarnations of God), or have any access to what the Supreme Being communicates, or have a higher cognitive faculty to receive revelations from the Almighty. If US judge Richard Posner's classic How Judges Think is read, it does not say judges look for any supernatural source before banging the gavel!
If US judge Richard Posner's classic How Judges Think is read, it does not say judges look for any supernatural source before banging the gavel!
Sovereignty, law and God
Judges exercise sovereign power to decide disputes. Judges also apply the law and principles of equity to determine causes. If so, does God provide them the power or guide them?
Going back into history, the sovereign was believed to derive his authority to rule from God or divinity. The king was considered a god who exercised the State's legislative, executive and judicial powers to maintain peace and prosperity in the territory.
However, this changed. The Act of Supremacy of the English Parliament established the king as the head of the Church of England. Subsequently, during the Glorious Revolution in 1688, the idea that the king exercised the powers gifted by God lost its constitutional foundation.
With the dawn of the Age of Enlightenment, the belief that sovereign power flowed from divinity completely lost its legitimacy. English philosopher Thomas Hobbes, in his Leviathan, was the first to articulate the concept of a social contract as the basis for the foundation of the State.
Hobbes said that all legitimate political power must be representative and based on the consent of the people. The social contract theory promoted by John Locke advocated that the legitimacy of the sovereign’s power lies in the consent of the people. Locke undoubtedly laid the foundation of limited government theory.
Similarly, the Greek classical theories of law, in the development of which Cicero played a leading role, held that the law also flows from divinity. The ‘jus naturalism’ advocated that law is derived from God besides nature and reason. The ancient Dharmashastras in India is a natural law code sourced from spiritualism.
However, these theories lost out to modern natural law theories based on reasoning and moral values. The Declaration of Independence by the US in 1776 and the Declaration of the Rights of Man and of the Citizen in France in 1789 formalised the changes.