Since 2018, this writer has assessed the legacies of Chief Justices of India upon their retirement (see here, here and here). For the first two of these – Chief Justices Dipak Misra and Ranjan Gogoi – there was no shortage of material. These Chief Justices wielded their powers as “masters of the roster” to hear (some) important constitutional cases, and cases involving high political stakes. The outcomes of these cases were critiqued, but at least there were cases, and there were outcomes.
With respect to Chief Justice Bobde – the last but one CJI – the situation was different: as I wrote upon his retirement, this was a 17-month long tenure that yielded precisely zero judgments of constitutional import. Nonetheless, it was a very consequential tenure, as the court’s maintenance of status quo directly benefited the political executive, and because even though he didn’t deliver judgments, CJI Bobde passed various interim orders that were also in favour of the political executive.
CJI Bobde’s tenure was also consequential because of the arbitrary allocation of cases to various benches that led to the Supreme Court speaking with a “forked tongue” when it came to crucial matters involving life and personal liberty.
CJI N.V. Ramana – who retires today – took over from CJI Bobde on April 24, 2021. When we look back at his 16-month tenure, the picture that emerges is similar to that of his predecessor, with one marked difference: unlike CJI Bobde – and indeed, before him, CJI Gogoi – CJI Ramana did not indulge in the intemperate and partisan pro-state broadsides that had become something of a habit for his predecessors.
To those who value appearances, this is no doubt important. However, once you strip away the rhetoric and focus on the record, it becomes easier to see the similarities between CJI Ramana and his immediate predecessor.
Judicial evasion and the sound of silence
The most striking feature of CJI Ramana’s 16-month tenure is the sound of silence. When he took over as Chief Justice in April, 2021, the following crucial constitutional cases were pending:
- The constitutional challenge to electoral bonds (which allow unlimited, anonymous corporate funding of political parties) (from September 2017)
- The constitutional challenge to the effective abrogation of Article 370, and the splitting of the erstwhile state of Jammu & Kashmir into two union territories (from August 6, 2019)
- The constitutional challenge to EWS reservations (from January 10, 2019)
- The constitutional challenge to the Aadhaar amendment ordinance (later the Act) (from July, 2019)
- Judicial review over money bills (from November 13, 2019)
- The constitutional challenges to the Citizenship Amendment Act (from December, 2019).
During CJI Ramana’s tenure, not one of these cases was decided: in effect, they have now been pending for 16 months longer than they were when he took office. Indeed, the CJI’s tenure – exactly like CJI Bobde’s – did not see a single significant constitutional judgment (with the possible exception of the Benami Act judgment, delivered in his final week).
Why does this non-decision matter? It matters because in all these cases (other than the CAA case), the status quo directly benefits the political executive. This is what I call “judicial evasion”. Judicial evasion is defined thus:
… by keeping a case pending, and delaying adjudication, the Court effectively decides it in favour of one of the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status quo to continue.
Judicial evasion is most starkly visible in the court consistently refusing to decide the electoral bonds case, even as election cycle after election cycle sees vast amounts of money being fuelled into the political system, with a disproportionate amount going to the ruling party (the reason for this is that, structurally, under the electoral bonds scheme, the government has access to donor data, while opposition parties do not).
This is a distortion of the electoral playing field – the ground rules of democracy – at its starkest, and exactly the kind of situation where the Supreme Court’s role as constitutional umpire is most desperately needed. It is also the case where the political stakes are particularly high, and where status quo benefits the political executive to a very high degree. Readers may therefore make up their own minds what the continued refusal by the Supreme Court to hear and decide the case – a tradition in which CJI Ramana now follows his three predecessors – means.
The consequences of judicial evasion are, in addition, clearly visible in the Article 370 case and the Aadhaar case, where continued inaction by the court results in the creation of a fait accompli “on the ground” that eventually becomes irreversible in fact, and makes a court judgment effectively infructuous.
No doubt, Simon and Garfunkel had this in mind when they correctly noted that “silence, like a cancer, grows”.
For the sake of completeness, it is important here to briefly flag the Maharashtra political crisis case, where the Supreme Court changed speed and direction more quickly than a fencer: in June, when the political crisis was at its height, a vacation bench of the Supreme Court swiftly heard the case, effectively suspended the Tenth Schedule through an interim order, and then compelled a floor test within 24 hours through a second interim order, having just immunised MLAs under threat of disqualification through the first order.
Expectedly, the government fell. Once the new government came in, and court vacations ended, the matter came before the CJI. At this point, all the urgency the court had shown before vanished like a dream: the CJI showed no inclination to hear the case, suggested referring it to a Constitution Bench (guaranteed, months-long delay), while the effects of the interim order – i.e., a wholesale change in government – continued, and continued to entrench themselves with each passing day.
In effect, the interim orders, with all their huge consequences – for all practical purposes – seem to have become final.
The One Case: Pegasus
The Pegasus spying scandal broke in July, 2021. Shortly thereafter, the Supreme Court was approached. The Pegasus case is the only significant constitutional case that CJI Ramana handled himself, and its fate is instructive.
Let us begin with a caveat: the Supreme Court could have declined to hear this case. It could have said that the case belonged to the political thicket, or that the question of surveillance raised national security issues that automatically took it outside the ken of the court’s jurisdiction (indeed, this was strenuously argued by the Solicitor-General). Had the Court done that, the matter would have been fought out in the public sphere (such as it is), without judicial involvement.
The court did not do that. CJI Ramana was at great pains to stress that “national security” was not a shibboleth that could be invoked to oust the jurisdiction of the Supreme Court. But here’s the thing: once the Court agreed to take on the case, once it held that its jurisdiction had been properly invoked, a heavy burden lay upon it to do its job, and vindicate citizens’ rights against state impunity.
This is because now, the outcome of the case would have judicial sanction. Were the court to shield the state from accountability for mass surveillance, it would, in effect, amount to judicial validation, and stymie – if not bury – any other attempts at accountability.
Unfortunately, the bench headed by CJI Ramana failed completely to hold the state accountable. During multiple hearings in August and September, 2021, the government categorically refused to state to the court – including in affidavit – whether Pegasus had been used by it or not. Note that this was not a question about specific details, which might raise questions around national security: as I wrote at the time, it was a straightforward “yes” or “no” question that the court was well within its rights to ask; indeed, without that basic fact (which was also not forthcoming from the government in Parliament), nothing could proceed further.
However, for two-and-a-half months, the bench led by CJI Ramana refused to pass any consequential orders; indeed, not only did it refuse to pass consequential orders, but it simultaneously stopped a committee (headed by a retired judge) – set up by the state of West Bengal – from examining the issues.
What was the harm in a state government-appointed inquiry committee examining a potential case of mass surveillance? We do not know, but this is yet another example of a phenomenon that is growing increasingly common: when it comes to issues involving high political stakes (the FCRA matter is another recent example), the Supreme Court is loathe to let any constituted authority other than itself have any say in the matter. This might still be justifiable if the court had a proud record of protecting citizens’ rights. When, however, it has a proud record of protecting the state, it becomes a problem.
Instead, after a further delay of many months, the Supreme Court appointed its own “committee” to look into the matter. This Committee, in turn, took several more months before producing a report that was submitted to the court and taken up by CJI Ramana on his penultimate day in office (August 25, 2022).
What does the report say? We do not know, because the CJI refused to make it public. All we know is that there was “no conclusive proof” to show that the malware that the Committee found on five phones was Pegasus. But because the report is not public, it is impossible for cybersecurity experts to examine the methods used by the Committee to arrive at its “no conclusive proof” determination.
We also know – because it was stated in court – that the government did not cooperate with the Committee. What consequences follow from this? Presumably, none, because all that CJI Ramana ordered was that a set of recommendations – made by the judge heading the Committee – about surveillance and privacy, be uploaded online. The value of these recommendations – as experience tells us – is not worth the digital space that they occupy.
CJI Ramana’s handling of the Pegasus case inverts the relationship between the individual and the state, and the role of the court in protecting individual rights against state impunity. If fundamental rights mean anything at all, they mean that individuals who have reason to believe they have been subjected to state surveillance have the right to question that, to ask the basis upon which they have been surveilled, and to seek remedies.
In the Pegasus case, the court’s conduct ensured that at no point was the state made answerable for any of this: not before the court and not before the Committee; and to put a “seal” on it (literally), the refusal to make the report public ensured that the citizen was not even in a position to question the basis on which the Committee arrived at its “no conclusive proof” determination.
In all but the name, this is what is called a ‘whitewash’.
The strange controversy around ‘freebies’
Let no one think that his refusal to hear the electoral bonds case meant that CJI Ramana was uninterested in electoral issues. In the last month of his tenure, he suddenly – and inexplicably – took up a PIL asking the court to regulate and restrict political parties from offering “freebies” during election campaigns.
This ‘freebies’ case took up hours of court time (time that the court apparently never had to hear the electoral bonds case) and presented some truly astonishing spectacles, such as counsel equating electoral promises to “bribes”, and the Solicitor-General seeming to hint that it was impermissible for a political party to promise to eliminate a specific tax if they came to power.
As I have written elsewhere, the ‘freebies’ debate is not even a debate (as it suffers from definitional incoherence) and at the very least, not a debate that the court has jurisdiction to adjudicate. And indeed, in his final week, CJI Ramana himself washed his hands of it – after repeatedly proposing to set up a ‘committee’ to look into the matter – by sending the matter off to another bench.
However, the issue with the ‘freebies’ debate is not so much that finally, the court didn’t ‘do’ anything; it is that for a number of days, the court’s intervention set the public discourse (the issue was ‘debated’ on prime time by TV channels) at the exact same time that the political executive was saying the exact same thing.
To this, two other crucial things need to be added: the PIL that formed the basis of the ‘freebies’ debate in the Supreme Court was filed by a leader of the ruling party; and in Court, the government’s law officer – the Solicitor-General – repeatedly egged the court on find a way to prohibit ‘freebies’.
Thus, if you were an external observer, you would see this:
- The head of the political executive criticises ‘freebies’ in a public speech.
- Out of nowhere, the Supreme Court suddenly starts hearing a case on ‘freebies’, repeatedly calling it a “very serious issue.”
- The ‘freebies’ case is itself filed by a leader of the ruling party.
- In the hearing, the Solicitor-General and the court are completely at idem about how ‘serious’ the issue is, and the fact that ‘freebies’ need to be dealt with.
And if you were this same external observer, what would you conclude from this? Would you not conclude that the court and the Executive were marching in lock-step, with the court providing judicial validation to what would otherwise have been a purely partisan piece of political propaganda? Would you not think that this appeared to be the behaviour of what I recently called “the Executive(‘s) Court”?
Indeed, CJI Ramana’s sudden obsession with regulating ‘freebies’ stands out all the more when you remember – and apologies for reiterating this yet again – that there was a genuine issue concerning political party funding that was pending before his Court from the day he took office; and yet, instead of hearing and deciding the electoral bonds case, the CJI spent hours of judicial time on a case that – if we’re being very charitable – was a non issue; and if we’re not, was yet another instance of the Executive(‘s) Court in action.
The master of the roster
In situations where a Chief Justice, during the course of his tenure, yields us with no significant constitutional decisions to analyse, some focus must then be cast on whether there were judgments during his tenure at all. This is important because, as we have discussed previously on this blog, the Chief Justice enjoys absolute power – as master of the roster – to assign (and re-assign) cases to various benches.
That the Supreme Court, at any given time, has more than 25 judges, is a fact. That judicial ideology exists is also a fact. What follows is that the Chief Justice’s power of case allocation carries with it a non-trivial power to influence outcomes.
Let me be clear about two things. The first is that this is not a defence of the powers of the “master of the roster.” This blog has repeatedly criticised the judgments that sanctified these powers: these judgments arose out of a specific crisis at the Supreme Court, where CJI Dipak Misra’s authority was under threat, and his response was to insulate himself from accountability for bench allocation.
As I have maintained previously, in a polyvocal court such as the Supreme Court, the only fair system is either an arbitrary allocation, or a permanent Constitution Bench fixed according to seniority. But that said, this is the system we have right now. The Chief Justice does have absolute power to allocate cases among the judges of the Supreme Court. And this includes the absolute power to re-allocate cases (a power that has, indeed, been used before). For the reasons mentioned above, this does mean that the Chief Justice has power and influence over outcomes, and the choice to exercise this power – or not – therefore attracts scrutiny.
The second – related – point is this: the argument is not that there is some collusion between the Chief Justice and individual judges, where the Chief Justice simply escapes responsibility for pro-executive judgments by assigning them to reliably pro-executive judges, instead of writing them himself. The point, rather, is that given the Chief Justice’s powers as ‘master of the roster’, the CJI bears some degree of responsibility for the overall record of the Court during his tenure, in a way that other judges of the Court – who are responsible only for their own judgments – do not.
And this becomes especially true when a Chief Justice has opted not to write constitutional judgments, and – instead – the heavy lifting in that regard has been done by others during his tenure (there is, of course, nothing wrong with the Chief Justice leaving certain cases to his colleagues – it is just that the nature of the scrutiny changes accordingly).
What, then, was the overall record of the Supreme Court during CJI Ramana’s tenure? It must be acknowledged, in fairness, that the strong bail order in Mohammad Zubair’s case, handed down by a bench led by Justice Chandrachud, was a valuable order in the cause of civil liberties; so also was the refusal – by a bench led by Justice Lalit – to interfere with the default UAPA bail granted to Sudha Bharadwaj in the Bhima Koregaon case. One can very easily imagine different outcomes in both cases, had they gone to different benches of the Supreme Court. Thus, one must give credit to the CJI – as master of the roster – for assigning these civil rights cases to benches that have had a history of passing positive, pro-liberty orders in such cases before.
However, when we consider the court’s record in constitutional challenges, the picture remains as bleak as it was before. Two of the most significant judgments passed by the Supreme Court during CJI Ramana’s tenure were the FCRA judgment and the PMLA judgment, both delivered by benches led by Justice Khanwilkar. I have examined Justice Khanwilkar’s record as being a more executive-minded judge than the executive; in this post, suffice it to say that on crucial civil rights issues, both judgments were exceedingly pro-state judgments delivered by a judge with a long-standing public record of being exceedingly pro-state in his judgments.
Admittedly, these cases were not assigned to Justice Khanwilkar by CJI Ramana: they were assigned by his two predecessors. CJI Ramana’s responsibility, thus, is not direct; but the fact that these cases were heard and decided on CJI Ramana’s watch – while he retained absolute powers of case allocation and re-allocation, with among a pool of 25+ judges to choose from – is something that cannot be ignored.
A job quarter-done: the sedition case
Finally, one may point to the interim order passed by CJI Ramana’s bench, which effectively put a stop to sedition prosecutions until further notice. There is little doubt that a halt on sedition prosecutions in the country is, in its own right, a good thing. But here again, context matters.
The case in question was a challenge to the constitutional validity of sedition. The government attempted to buy time by stating that it would constitute a committee to look into whether sedition still served any purpose. To this, there is only one appropriate judicial response: to tell the government – politely, but firmly – that it was at perfect liberty to set up its committee, but that that had no bearing on the constitutional case that the court was hearing.
CJI Ramana’s bench, however, did not do that, and instead, used the government’s submission to pass its interim order. There are two problems with this. The first is that unlike a judgment, which has binding force, an interim order can be vacated at any time by whichever subsequent bench the case goes before. The second – as I have pointed out in some detail in this post – is that given the vast range of criminal law provisions at the government’s disposal to harass and jail its critics – not least the UAPA – any judicial order on sedition would, at best, be of merely symbolic value, unless it was accompanied by strong reasoning reiterating established constitutional principles on freedom of speech, and limits to which the state could restrict rights – reasoning that could then be used to bring other, more draconian provisions in line with constitutional standards.
An interim order, by definition, fails to do any of that. And this is why it is a case of a job being quarter-done, at best. Yes, until further notice, people cannot be prosecuted for sedition, and that is a good thing. But, as we have seen repeatedly by now, if the state really wants to keep you in jail for years without trial, it does not need the sedition law to do that. When CJI Ramana took up the constitutional challenge to sedition, he had a chance to solve a few of those problems; regrettably, however, the interim order that he finally passed did not do so.
It is not easy being a Supreme Court judge. It is specifically not easy being a Supreme Court judge in the time of an absolute majority government, whose approach to the Constitution is like Douglas Jardine’s approach to the Bodyline series: stretch the rules to their absolute breaking point, and see what the umpire will let you get away with.
It is reasonable for critics to temper their expectations of the court at times like these, and to appreciate that – as a political actor with limited political capital – the court will have to negotiate a space for itself, and that negotiation will often require a degree of compromise.
But while one can sympathise with the difficult position that the court finds itself, what is disappointing is when it appears that the court is not even trying. As with his predecessors, CJI Ramana’s determination to avoid crucial constitutional cases with a ten-foot barge pole crosses the line from judicial caution to judicial pusillanimity: no matter how difficult the situation, there can be no excuse for the court refusing to do its basic job of at least attempting to hold the state to account. Why else do we have a Supreme Court in the first place?
But as the Pegasus case and the ‘freebies’ case show (in different contexts), what is worrying is not just the inability to protect rights, but the formation of the Executive(‘s) Court that marches in lock-step with the executive, acting as both its shield and its sword.
In Pegasus, the Court acted as a shield, protecting the government from accountability – from the first day of the hearing, when it refused to ask the “yes or no” question, to now, when it refused to publish the technical report of the Committee. In the ‘freebies’ case, the court acted as the sword, amplifying – and providing judicial validation to – a debate that the political executive conjured up out of nowhere.
The Executive(‘s) Court did not begin with CJI Ramana. And we can perhaps be grateful that – at least – it did not become worse with him. We can also perhaps be grateful for the specks of light in his tenure, which were notably absent in the tenures of his predecessors: the Benami Act judgment, the last-day decision to reconsider Justice Khanwilkar’s PMLA judgment (albeit on limited grounds), the interim order on sedition, and the assignment of Mohammad Zubair’s case to one of the more pro-liberty benches of the Supreme Court.
But at the end of the day, if we were to honestly ask ourselves: does he leave the Court better than he found it, the answer would have to be “no.” The Supreme Court’s drift towards the Executive Court and the Executive(‘s) Court was neither reversed, nor halted, but at best – perhaps – temporarily kept in abeyance.
As CJI Ramana’s tenure passes into history, we wait to see the direction in which his successors will now take the Supreme Court.
This article first appeared on the author’s blog. It has been edited slightly for style. Read the original here.
Gautam Bhatia is a Delhi-based lawyer and author.