UNCERTAIN JUSTICE
A few notable exceptions aside, 2019 showed the vulnerability of the Supreme Court, and its willingness to bow to an assertive Executive
A few exceptions aside, 2019 showed the Supreme Court’s vulnerability and willingness to bow to an assertive Executive
BY PRANJAL KISHORE
OOUTSIDE A SMALL GROUP of judges, lawyers and journalists, few Indians get to watch proceedings in the Supreme Court of India, or actually take time to read a judgment. However, it is the apex court of the largest common law judicial system in the world, as also the court of last resort for more than a sixth of the world’s population. Its judgments have far-reaching social, economic and political ramifications—and consequences that affect the lives of every citizen.
If you followed the news in 2019, you might have got the feeling that the Supreme Court was running the country. You wouldn’t be far off. Every issue of any consequence, and many of none whatsoever, found their way to the Court. Through the course of the year, the Court decided—or chose not to decide—cases that went to the very heart of India’s constitutional law and Indian society. On occasion, when concerned citizens looked to the Court to stand up for civil liberties, it let the matter slide; when it did take action, its orders often left loopholes the government could exploit.
Take for instance, the case of former CBI director Alok Verma. When the central government divested Verma of his powers in October 2018, he challenged the order in the Supreme Court. In January 2019, the Court reinstated him. Inexplicably, however, it also directed him to desist from taking any “major policy decision” till the committee, set up under Section 4 of the Delhi Special Police Establishment Act, took a decision on his future. A few days later, the committee asked Verma to step down once again. In February, the Court was called upon to look into the vacancies in information commissions (set up under the RTI Act) across the country. In Anjali Bhardwaj v Union of India, the Court stressed on the importance of transparency in appointments to the State and Central Information Commissions. It passed wide-span directions seeking to ensure selection of independent panels. But a few months later, when the government hollowed out the independence of the information commissions and commissioners through substantial amendments in the RTI Act, it looked away. The Court’s own independence and transparency came into question. In December 2018, the Collegium had recommended Justice Pradeep Nandrajog and Justice Rajendra Menon for elevation to the Supreme Court. The composition of the Collegium changed after Justice Madan Lokur retired on December 30, 2018. On January 10, 2019, the new Collegium
passed a resolution overturning these decisions on the basis of “new material”, the contents or relevance of which were never made public.
The matter of Justice Akil Kureshi’s appointment as a high court chief justice stayed in the news through the year. Justice Kureshi was the seniormost judge in the Gujarat High Court. For context, it was he who, in 2010, had directed that Amit Shah be sent to police custody for his alleged role in the Sohrabuddin case. In May, the Collegium recommended that he be appointed chief justice of the Madhya Pradesh High Court, which has a strength of 53 judges. The Centre sat on the recommendation for months, before requesting the Collegium to reconsider its decision. Had the Collegium reiterated its recommendation, the government would have had no choice in the matter. Instead, the Collegium caved in, and recommended the appointment of Justice Kureshi as chief justice of the high court in Tripura—one of the smallest high courts in the country, with a strength of three judges.
That said, the lack of transparency in the functioning of the Collegium was not the worst institutional challenge the Court faced this year. In April, a former employee of the Supreme Court registry forwarded a detailed affidavit to the SC judges, alleging sexual harassment by retired Justice Ranjan Gogoi—then Chief Justice of India. She also levelled allegations of a subsequent pattern of vengeance inflicted upon her and her family. In this unprecedented situation, the Court could have ordered an enquiry under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act or followed its internal sexual harassment complaint procedure. What it did instead was to first summon an ‘emergency Saturday hearing’ in a case dramatically titled: ‘In Re: Matter of Great Public Importance Touching upon the Independence of Judiciary—mentioned by Shri Tushar Mehta, Solicitor General of India’. It concluded the charade with a secret, internal report exonerating Justice Gogoi. In between, it appointed Justice A.K. Patnaik, a retired judge of the Supreme Court, to enquire
In December 2014, a Supreme Court bench of Justice Ranjan Gogoi and Justice Rohinton F. Nariman took upon itself the task of ensuring that the NRC process was completed in Assam. Many legal commentators have pointed out that this was beyond the Court’s legitimate writ, and exposed it to allegations of ‘judicial overreach’
into wild allegations regarding a conspiracy to ‘fix the Chief Justice’. Justice Patnaik is yet to conclude his enquiry.
Former CJI Gogoi made news in 2019 for other reasons too. In something that took on the appearance of a personal project, he instituted a court-administered mechanism to update the NRC (National Register of Citizens) in Assam, and even set a deadline by which it had to be executed. The NRC is a register containing the names of Indian citizens; it was prepared by census enumerators from the census slips of 1951. Petitions seeking an updation of the Assam NRC were filed in 2009, and it was in December 2014 that the Supreme Court—more specifically, a bench consisting of Justice Ranjan Gogoi and Justice Rohinton F. Nariman— took upon itself the task of ensuring that the process was completed. Many legal commentators have pointed out that this was beyond the Court’s legitimate writ, and exposed it to charges of ‘judicial overreach’.
THE UPDATED NRC, which came out in August 2019, excluded more than 1.9 million people. Media was awash with stories of malafide exclusion, of how the updated list of citizens had left out hundreds of thousands of genuine citizens. And, to top it all, after Justice Gogoi retired in November, both the Centre and the state government denounced the list and have proposed a fresh NRC process.
Justice Gogoi also presided over one of the longest running and most contentious legal disputes in the country. Civil proceedings in the Babri Masjid-Ram Janmabhoomi dispute came to an end on November 9, with the Supreme
Court holding that the Hindu side had “possessory title” over the disputed site. A lot has already been written on the merits of the decision, but the priority given to the adjudication of the case merits some comment.
Ever since appeals against the Allahabad High Court judgment partitioning the disputed land into three parts came up before the Supreme Court, it had tried to characterise the issue as a ‘simple land dispute’. What, then, was the reason to have it heard by a bench of five judges? Under Article 145(3), a bench of five judges is constituted for cases involving a substantial question of law that requires an interpretation of the Constitution. It is also not clear why the hearing of the case was fast-tracked, even though an application seeking early hearing of the case had been dismissed as recently as January.
The Court’s 40-day ‘daily hearing’ commitment in the Babri Masjid-Ram Janmabhoomi case was cited as a reason for its inability to deal with other important issues that came up before it. Foremost among these were the petitions challenging the communications lockdown in Kashmir and
The SC’s 40-day ‘daily hearing’ commitment in the Ram Janmabhoomi case was cited as a reason for its inability to deal with other critical issues, such as the petitions against the communications lockdown in Kashmir and the repeal of Article 370. The delays invited criticism from even the UN