From Lodha to Ramana: the Chief Justices of the Modi era

29 Oct 2022 From Lodha to Ramana: the Chief Justices of the Modi era

From Lodha to Ramana: the Chief Justices of the Modi era

• The Supreme Court (SC) of India known as the  custodian of the Indian Constitution.
• Primary responsibility of the SC: To ensure protection of fundamental rights of citizens guaranteed under the Constitution from the state.

Supreme Court emerges as the most powerful court among other courts of the world due to:

• Its power of judicial review through its decision in Keshavananda Bharati case.
• It assumed the power of judicial appointments to itself and High Courts through various judgements in first judge, second judge and third judge cases and CJI is appointed through seniority convention.
• SC of India ensures the citizens wide ranging protections by expanding scope of the fundamental right to life and liberty  guaranteed under Article 21 of the Constitution.
• Provision of  Public interest litigation(PIL) through which common citizens approach the courts even by sending a letter.
• Powerful Chief Justice of India (CJI): Besides performing normal judicial duties. CJI is responsible for selecting judges for appointment to the higher judiciary and deciding the number and composition of benches to adjudicate on different kinds of cases.

Evolution of the office of CJI: It  is a classic example of a constant shifting and rebalancing of power between the judiciary and the executive.

• From 1950 to 1971: During this period CJI had complete authority over judicial appointments, and CJI can even veto any judicial appointments.
• Between 1971 and 1993: Executive became strong due to strong single party central governments and executive started appointing ‘committed judges’ to the Supreme Court, in a clear attempt  to change the size of Supreme Court in its favor. SC in  ‘first judges’ case (1981) or  SP Gupta case held that the opinion of the Chief Justice of India would not be binding on the government.
• In the second judge’s case (1993) creation of Judicial primacy and the collegium took place. Through the second judge case of 1993 the judiciary seized the power of appointments back from the executive. 
• After 2014: Due to the rise of the Narendra Modi-led BJP government single party majority the executive is once again back in control and as a consequence of it the power of the judiciary is weaker than before and  weak judiciary is unable to control autocratic tendencies of the executive such as communal polarisation, misuse of investigating agencies and slow destruction of democratic institutions etc.

CJIs of the Modi era (2014 – 2022):

• Just after ending the tenure as CJI ,Justice P. Sathasivam was appointed as Governor of Kerala  without an appropriate cooling period against the own policy of BJP govt.After the NJAC judgment, matters were still not settled, and the memorandum of procedure for appointments to the higher judiciary became the centrepiece of the dispute between the executive and the judiciary
• Tenure of Justice R.M. Lodha: He revived the dormant trend of direct appointments from  Bar to the Bench in the Supreme Court.This practice was permitted under the Constitution, but rarely attempted.Justice Lodha was also famous for report on reforms in the Board of Control for Cricket in India. The Executive under the Modi government first confronted the judiciary when it refused the appointment of Gopal Subramaniam as judge of SC.
• Tenure of Justice H.L. Dattu: His tenure was known for the first major confrontation between the executive and the judiciary.Judiciary struck down the National Judicial Appointments Commission (NJAC) Act.But, Supreme Court failed to fix the flaws in the NJAC Act, by addressing its shortcomings. Memorandum of procedure for appointments to the higher judiciary remains the centerpiece of the dispute between the executive and the judiciary.
• Justice T.S. Thakur: He highlighted the plight of the overburdened Indian judiciary and  worked actively for mechanisms of filling up vacancies.He was responsible for setting up the National Judicial Data Grid to connect all levels of the judicial system and to  provide easy information to litigants.He fell in conflict with Modi government  when he attempted about 20 transfers of judges across High Courts.Due to ambiguous nature of the  decision and since it is threatening independence and overall integrity of the judiciary, he had to reverse  his decision.
• Justice J.S. Khehar: Many landmark judgments such as  Right to Privacy and Triple Talaq were passed during his short tenure. He  also revived the debates on the lack of transparency and fairness in managing the roster in the Supreme Court.His response towards procedure followed by him when allegations were made against him in a suicide note of Kalikho Pul ( former Arunachal Pradesh CM)was without precedent and also without propriety.In a complete disregard of basic principles of natural justice and clear case of conflict of interest, Justice Khehar chose to list the letter written by Pul’s wife seeking permission to file an FIR against the judges mentioned in the  as a writ petition (converting an administrative question into a judicial one).In his tenure High Court judge, Justice C.S. Karnan, was convicted and imprisoned for contempt of court but some experts felt that decision was unconstitutional  as it overlooked  Parliament’s exclusive privilege to remove a member of the higher judiciary in an act.
• Justice Dipak Misra: During his tenure four fellow judges held an unprecedented press conference condemning the CJI’s internal administrative decisions, specifically related to disregard for court conventions of bench strength and bench composition in the allocation of cases.Impeachment motion was also proceeded against him in parliament which was as eventually quashed by the Rajya Sabha.Issue of the master of roster and conflict of interest also emerged during his tenure.Justice Misra tried to achieve a balance between adjudication and disposal  and known for setting up the maximum number of constitutional benches as CJI.
• Justice Ranjan Gogoi: He had been party to the unprecedented press conference held by judges.But during his tenure he  disregarded the conflict of interest when he sat in the hearing of a sexual harassment complaint made by an employee of the Supreme Court against himself breaking all principles of natural justice.He was obsessed with secrecy, and preferred information to be submitted to the court in ‘sealed covers’ and this was employed in Assam’s National Register of Citizens (NRC) matter, the Rafale dispute, the electoral bonds issue.His tenure gave rise of the ‘executive court’ when judiciary took over the executive’s role in NRC.He refused to admit habeas corpus petitions filed from Jammu & Kashmir in the wake of the abrogation of Article 370.He gave rise to the practice of ‘judicial evasion’ as Supreme Court avoided hearing certain cases altogether such as the electoral bonds case, the Citizenship Amendment Act case, the abrogation of Article 370, etc.He also accepted an appointment as a Member of Parliament (Rajya Sabha) soon after retirement which he opposed during his judicial tenure. Also there is increased interference of  executive and legislative in the matters of the judiciary. Also the tendency towards sycophancy started among Supreme Court judges, some judges like Justice Arun Mishra and Justice M.R. Shah publicly praised the PM. His Bench also concluded the long-standing Ayodhya dispute.
• Justice Sharad A. Bobde: He has the longest tenure in the Modi era.Judiciary experimented boldly with technology, but it also shows greater subservience towards the government.Judicial evasion continued in his tenure. In his period the Court gave preferential treatment to certain matters, for example, in the bail matters of journalists Siddique Kappan versus Arnab Goswami. He stayed the farm laws and set up a committee to examine the law  that seems to be biased in favor of law. He discouraged the use of Article 32 petitions as a means of approaching the court.He tried to take away the right to adjudicate on COVID cases from High Courts.Supreme Court’s attitude towards plight of migrant laborers in India during the pandemic was blight.In his tenure there was a case of stand off within the collegium when Justice Bobde was reluctant to recommend Justice Akil Kureshi to the Supreme Court which was recommended by Justice Nariman.
• Justice N.V. Ramana: He started the judiciary’s  engagement  with the public through his speeches and brought back some of the old glory of the Supreme Court. He once again revived the ‘sentinel on the qui vive’ of the Judicial institution. He improved the public confidence in the judiciary through certain bail orders and stays (e.g., sedition), and the Pegasus inquiry. But some judgments from his associate judges during his tenure seriously undermined civil liberties.Court’s  decision on the Prevention of Money Laundering Act, Unlawful Activities (Prevention) Act (the Watali case), had the effect of virtually detaining people for an indefinite period. The Supreme Court was held responsible for criminalizing petitioners who dared to approach the Court on civil liberty matters for example, The Teesta Setalvad/Zakia Jafri and Himanshu Kumar cases.To improve the diversity in the system he appointed many women judges and made a significantly large number of appointments in the higher judiciary to fill all the vacancies of the SC. But, despite efforts to improve the image of the judiciary, the practice of judicial evasion continued and no constitutional Benches were formed in Justice Ramana’s term.Current CJI of SC is U.U. Lalit: He improved  processes of filing and listing of cases.He initiated certain orders such as granting bail to individuals in the Kappan and Setalvad cases.

Future Challenges and responsibilities of SC/Judiciary:

• Protect the judiciary from powerful executives.
• Strengthening the Indian judiciary, especially the lower courts.
• Evolving the office of the CJI in the right direction.

Source: The Hindu: From Lodha to Ramana: the Chief Justices of the Modi era (A.P. Shah)

Source Link: https://www.thehindu.com/opinion/op-ed/from-lodha-to-ramana-the-chief-justices-of-the-modi-era/article65909662.ece 

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