The Supreme Court of India has often been hailed as one of the most powerful constitutional courts in the world. With its expansive jurisdiction, the power to do ‘complete justice’ and authority derived through unconventional interpretation of the Constitution, the SC did not conform with orthodox notions of the judiciary being a ‘weak branch’ of the government. In the recent years, the tenures of Chief Justices such as Dipak Mishra, Ranjan Gogoi and Sharad Bobde have been mired in controversies. The unprecedented press conference by four senior judges of the SC in which we were cautioned about democracy being endangered, the allegations of sexual harassment against Chief Justice Gogoi and deference towards the executive dented the SC’s image.
In this backdrop, when Justice NV Ramana was sworn in as the 48th Chief Justice of India, stakeholders fervently hoped that he would revitalise the SC. Unfortunately, his tenure which lasted between April 24, 2021 and August 26, 2022 was afflicted with ‘judicial evasion’—the reluctance to hear cases of critical importance for the rights of citizens and democratic governance.
An apex court which does not prioritise the adjudication of cases involving constitutional law is no different from an ordinary court of appeals. Dr Ambedkar had described Article 32 as the ‘heart and soul’ of the Constitution as it grants citizens the fundamental right to approach the SC to enforce their fundamental rights. Judicial evasion strikes at the heart of the constitutional scheme as it renders citizens helpless when they face an onslaught from the state’s agencies. As the ‘Master of the Roster’, the Chief Justice can ensure prompt adjudication of important cases by constituting special benches of the required size and allotting these cases to them.
In his speeches, Justice Ramana highlighted the importance of judicial review and pointed out that the citizens’ faith in the Constitution would have diminished in the absence of judicial review. Ironically, there are more than fifty important cases pending before constitution benches consisting of more than five judges. Some of the cases of great constitutional importance include those pertaining to the constitutionality of electoral bonds, the Central Bureau of Investigation, the abrogation of Article 370, the Unlawful Activities (Prevention) Act, 1967, the Citizenship (Amendment) Act, 2019, reservations for Economically Weaker Sections, etc.
Electoral bonds were assailed before the SC in 2017. Though the Election Commission had expressed a few concerns about the anonymous nature of the bonds and the petitioners had explained how illicit political funding could undermine fairness of the electoral process, the SC did not grant a stay. Just like his predecessors, Chief Justice Ramana failed to prioritise this case. In April 2022, he claimed that he would have heard the case if not for the pandemic. When Senior Advocate Prashant Bhushan stressed that electoral bonds were “distorting democracy”, Justice Ramana assured him that the case would be heard soon. However, the case was not taken up for hearing and he sprang a surprise by allocating judicial time to decide the vexed questions around ‘freebies’.
Speaking at the University of Osmania, Justice Ramana explained the importance of pluralism and how education should nurture diversity as opposed to “othering”. When questions of pluralism and “othering” came up before him in the context of the Hijab ban in some of the educational institutions in Karnataka, his response did not reflect this sentiment. In March 2021, Senior Advocate Devadatt Kamath requested Justice Ramana for an urgent hearing as students were not even being allowed to appear for examinations if they wore a hijab. In addition to refusing an urgent hearing, Justice Ramana remarked “Examinations have nothing to do with the issue”.
The manner in which Justice Ramana’s bench handled the Pegasus scandal has been far from satisfactory. Instead of exercising its judicial powers to compel the government to come out clean, the bench virtually outsourced its task to a committee headed by a retired judge. Unsurprisingly, after a long delay, the committee came up with an inconclusive report and it appears that the government did not fully cooperate with the committee. Though he urged citizens to “work tirelessly towards sustaining liberty, freedom and democracy”, his judicial response against surveillance does not in any way help citizens sustain freedom by fighting against malicious intrusions into their private sphere.
The SC’s reluctance to decide certain cases before irrevocable changes take place is disconcerting. With the passage of time, it becomes hard to restore the original state of affairs which existed before the impugned action was taken. A case in point is the refusal to promptly decide the constitutionality of the abrogation of Article 370. Similarly, Justice Ramana’s bench failed to intervene effectively in the Maharashtra political crisis. By merely referring the case to a five-judge bench after considerable delay, the bench remained a silent spectator when a government formed in a constitutionally immoral manner entrenched itself.
During Justice Ramana’s tenure as the CJI, eleven judges, including three women, were appointed to the SC. Also, more than two hundred judges were appointed to various High Courts. While these appointments may help reduce pendency, the government sat over a few recommendations and blocked the appointment of certain judges. The Collegium’s failure to secure the appointment of Justice Akil Kureshi to the SC and Senior Advocate Aditya Sondhi to the Karnataka HC, has been disappointing.
Justice Ramana had once said that loss of faith in the judiciary would endanger democracy. His zeal to fill judicial vacancies, improve judicial infrastructure and introduce local languages in courts deserve appreciation. Similarly, his decision to review the SC’s problematic judgment on the Prevention of Money Laundering Act, 2002 comes as a relief. However, his failure to facilitate timely adjudication of cases has harmed the SC’s image. In fact, in his farewell speech, he apologized for his failure to list certain cases.
Paradoxically, despite quoting Lord Denning on the best judge being the one who is less known and seen in the media, he will probably be remembered more for his speeches on the rule of law, democracy, liberty, etc. than for his judgments on these subjects.
Rahul Machaiah is a lawyer from Karnataka. He holds an LLM in Law & Development from Azim Premji University.
Views expressed are the author’s own.