CJI’s comments and orders put spotlight on Supreme Court-government relationship

Soon after taking over as CJI, in one of his first public lectures at the PD Desai memorial function, NV Ramana created a stir when he said regular elections were not a guarantee against “tyranny”. He also said that the rule of law was a double-edged sword which could be used either to dispense justice or to justify oppression. Laws must be imbued with the ideals of justice and equity and reach the underprivileged, he said.

The CJI has since taken a tough stance on whether the central government can enact a law incorporating provisions struck down earlier.

In the Madras Bar Association case, the Supreme Court held certain provisions regarding service and tenure of tribunal members unconstitutional. The government has revived these provisions in its latest Act.

The CJI told off the government for enacting laws without even a semblance of a debate to justify why it was being brought in and lamented the erosion in the standard of parliamentary debates since Independence.

At the last hearing, he threatened to stay the law unless the government took back one of its decisions – to abruptly end the tenure of the National Company Law Appellate Tribunal chief days before he was set to retire.

Attorney general KK Venugopal prevailed upon the government to send the new appointee on leave for a few days so that the earlier appointee could complete his work and gracefully retire, diffusing the stand-off.

“This is all noise. The truth is nothing has been done on these appointments,” a senior advocate said on condition of anonymity, cautioning that it may be too early to pronounce a judgment. “The government has so far appointed only four of the 13 names.”

Pegasus case

In the Pegasus case on the alleged use of the snooping spyware, the CJI has brushed aside the government’s claim that whatever was done in the country was within the confines of legality.

Was the spyware used to violate the fundamental rights of citizens on a mass scale? Did a government entity or a foreign one overstep? An independent team being set up by the court, with the requisite power to summon witnesses and evidence, will probe such questions.

The CJI, however, said the court was not interested in knowing whether the spyware was being used to counter terrorism or dealing with law-and-order problems.

No one knows which way it will go, but a message has gone that the CJI means business, said an expert.

A senior advocate said there are signs of a clear departure from the CJI’s four-five immediate predecessors, who gave the impression that they were not able to perform the role of a constitutional watchdog as expected.

“CJI Ramana has changed that perception of people regarding the judiciary,” said the senior advocate, who did not wish to be identified. “The CJI is after all the leader of the judiciary. He shows the way. The way he functions sends a message to the high courts and district courts. He has started questioning those who have power and are hence accountable. That message has reached the lower judiciary.”

Senior advocate and former Supreme Court Bar Association chairman Dushyant Dave said: “CJI Ramana is certainly breathing fresh air into the institution.

But he has a long way to go in regaining the Supreme Court the image that it deserves.”

“Over the last two decades, there has been a serious erosion of independence of the court, resulting in an erosion of its standing. People’s love for the institution has diminished,” said Dave. “If the CJI is truly serious, and I am sure he is, he must take his colleagues into confidence and together they must re-establish its authority and reassert its constitutional position as the watchdog over Parliament and the executive.”

Challenges galore

“Many serious issues of far-reaching legal, constitutional and executive discretion are languishing in the court registry, affecting the lives and well-being of millions of citizens and the Republic. Only when these are taken up and decided, can one conclude that the CJI means business,” said Dave. He was alluding to the long list of complex constitutional issues yet to be heard by the court.

These include the legality of anonymous electoral bonds, constitutionality of the government move to dilute Article 370 and carve up the former state of Jammu and Kashmir into two Union Territories, the validity of Citizenship Amendment Act and National Register of Citizens, and passing off non-money bills as money bills to bypass the Rajya Sabha.

Another senior advocate cited the example of Aadhaar to argue where the court was going wrong.

“If you sit on a case for five years, by the time you give a ruling 100 crore people have Aadhaar. By then it’s too late to reverse Aadhaar. It would also be very difficult to do anything on electoral bonds if too many years go by,” he said, requesting not to be identified.

On the one hand, the CJI has been able to bring in four women judges to the top court. But he hasn’t been able to put his foot down on Justice Akil Kureshi, who has been denied elevation to the Supreme Court despite being number two in the all-India judges’ seniority list, said the senior advocate. Appointment of 300 high court judges is in limbo, he said However, acknowledging that the CJI alone cannot set things right, he said, “Unless the government plays its constitutional role what will any CJI do?”

Another senior advocate said the CJI has already made his mark administratively and is able to carry the judges and the collegium with him. “Things are moving forward. All old matters are being listed and are being decided one way or the other,” he said, adding that all the signs are positive. “We may not have got Justice Akil Kureshi, but we have got Justice Abhay Oke.”

The CJI’s public pronouncements show his resolve, value system and beliefs, and his willingness to stick out his neck for them, he said.

“The CJI has sent the message that you are accountable. In the next stage he has to hold them to account. Hopefully he is in the process of doing so,” said senior advocate CS Vaidyanathan.

Judges too said that things started looking up ever since CJI Ramana took over. The chief justice of the Odisha High Court, S Murlidhar, said last week that the CJI had made the foundations of the judiciary stronger.

Senior advocate Abhishek Manu Singhvi said the CJI has undoubtedly brought in great dynamism and speed in decision-making. “The ability to carry colleagues along to get appointments moving, transfers implemented and a near full SC, including three women, is testimony to this,” he said. “He has to maintain this in addressing issues such as creaking infrastructure and take innovative steps like appointing ad hoc judges to tide over transitional gaps,” said Singhvi. “Lastly, he needs to pull out some longpending and constitutionally significant cases and dispose of them – religion/minority issues, J&K and political donor bonds, etc., being a few examples. I have no reason to believe that he will be tardy in these.”

Another senior advocate, however, cautioned against any hasty judgments on the CJI, insisting it was too early. A CJI has to first find his feet, keep juggling competing pressures and it’s early days yet, he said, speaking on condition of anonymity. “We are still in the throes of a lockdown. By January 2022, hopefully, things will start moving,” he said.

As the CJI said in Odisha, quoting Odia literary giant Madhusudan Das, a man’s life is not counted in days, months or years but by his karma or work.

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