IDLE: The gavel was not used to defend the Constitution against saffron attempts to undermine democracy.
By Gautam Bhatia
The just retired Chief Justice N V Ramana did not take up any of the sensitive issues which would have affected the Modi government. On the contrary like his predecessor he observed maun vrat on controversial subjects.
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:
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 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’.
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.
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.
Courtesy: The Wire