By Inderjit Badhwar
The theme of this issue’s special cover story could not be more apt. As we celebrate Constitution Day, what better way to do so than to look back at the performance and achievements of the premier institution designed and created by the Founding Fathers to uphold the majesty, legitimacy and supremacy of the Rule of Law—the Supreme Court.
The Court is both a creation as well as an enforcer of the invaluable document that gave it birth—the Constitution. There is no gainsaying that over the years, the judiciary has weathered both criticism as well as controversy. The Supreme Court has often borne the brunt of these onslaughts. But as we analyse its functioning and decisions over the past year, we are constrained to arrive at no other conclusion that, so far, the leading guardian of the Court—Chief Justice Nuthalapati Venkata Ramana—has carved out an enviable jurisprudential niche for himself in that institution’s hall of fame in an astonishingly brief period of time.
Without fail, he has headed or inspired benches of his Court not only to speak out but to firmly uphold the concepts and precepts of constitutional morality which undergird the liberties, freedoms and the right to a peaceful life devoid of state tyranny.
What we express in this lead editorial is not hagiography but a fact-based examination of the record. To reiterate a cliché, the proof of the pudding is in the eating. And there is little doubt that under CJI Ramana’s stewardship, the nation has tasted a rich fare of the judicial protection of fundamental rights and an adumbration of progressive concepts which are spelled out in rich detail and analysis in the stories that follow in this issue.
Shortly before Justice Ramana took oath as 48th chief justice of India on April 24, 2021, I wrote in this magazine that it was only appropriate and necessary to observe his record not only as a jurist but also the prominent aspects of his personality.
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Two years ago, I had the honour of interacting with him personally at a well-attended legal conclave of prominent judges and eminent members of the legal profession discussing the Insolvency and Bankruptcy Code, (IBC) a major reform measure.
At a professional level, his reasoning, analytical abilities, depth of knowledge and presentation skills in handling a highly specialised and complex subject were unbeatable. At a personal level, I found him ruminative, soft-spoken, courtly and conscientious, but, most of all, infectiously humble.
He has chaired several committees related to the IBC law, a commendable initiative that has helped India leapfrog ahead in the list of countries known for the ease of doing business.
In addition to his unique expertise on specific subjects, Justice Ramana, during his long tenure as a judge of the Supreme Court, has been party to numerous judgments. Notable judgments include: Central Public Information Officer vs Subhash Chandra Agarwal (2019), dealing with the Right to Information Act, 2005; Foundations for Media Professionals vs Union Territory of Jammu and Kashmir (2020) and Lata Wadhwa’s case which held that compensation for housewives must depend on the work being performed by them, therefore granting dignity to women who are homemakers.
The judgments in Roger Mathew and Jindal Stainless Steel have paved the way for flexibility of appointments to tribunals and the autonomy and freedom of state governments to design their own fiscal legislation, respectively.
Before he became chief justice, India Legal in a special story described Justice Ramana as a “kind, considerate and soft-spoken judge, who is eager to do justice and give counsel appearing before him a patient hearing with an open mind. His vast experience of being a judge for some 20 years, eight of which have been acquired in the apex court, will come to his aid in a remarkable way”.
We also pointed out that his understanding of the higher judiciary as the chief justice of the Delhi High Court and acting chief justice of the Andhra Pradesh High Court would give him great perspective while carrying out his duties as the fountainhead and paterfamilias of the Judiciary. His tenure as a government counsel for various departments and as an additional advocate general had given him a deep understanding of the functioning of government departments, bringing to fore his expertise in civil, criminal, constitutional, labour, service and election matters.
His humble beginnings, we noted,
“have given him an insight into the suffering of the common man, which has also made him a champion of civil liberties from the very beginning of his college days and later as a journalist. He has great empathy for those requiring protection of human rights. His tenure, no doubt, will be marked by compassion, expertise and wisdom”.
Wishing him a happy journey ahead, we also cautioned that as the head of one of the three pillars of the State, it becomes the responsibility of the CJI to ensure that reformation and transformation continue faster than ever. The disposal rate of cases across the country must move ahead at least twice the speed with which matters get filed. The functioning of all the tiers of the courts and the tribunals are matters of great concern and requires the attention of the CJI.
Shortly after he took his chair, we were delighted to see that the chief justice had hit the ground running. And in an editorial headlined “Ramana Shows The Way, Again” we resoundingly endorsed his call for the paramount need for free legal aid to the needy.
This was highly relevant to the observation that the threat to human rights is highest in police stations. Over the years, India Legal has reported stories, penned editorials and run columns asserting the validity of this statement. It cannot be stated often enough. It will never cease to be a cliché or a horror to which any freedom-worshipping human being, anywhere in the world, should become inured.
Chief Justice Ramana reiterated this concern at a function organised by the prestigious National Legal Services Authority (NALSA). It was a blunt, no-holds-barred statement from the highest legal authority sworn to uphold, enforce and interpret the nation’s most sacrosanct secular document gifted to us by our founding fathers.
He declared that the issues of human rights and dignity enunciated in the Constitution are “sacrosanct”. The threat to human rights and bodily integrity “are the highest in police stations,” he said. “Custodial torture and other police atrocities are problems that still prevail in our society. In spite of constitutional declarations and guarantees, the lack of effective legal representation at the police stations is a huge detriment to arrested or detained persons.” His remarks need to be quoted fully:
“The decisions taken in these early hours will later determine the ability of the accused to defend himself. Going by the recent reports even the privileged are not spared third-degree treatment,” he said. “To keep police excesses in check, dissemination of information about the constitutional right to legal aid and availability of free legal aid services is necessary. The installation of display boards and outdoor hoardings in every police station/prison is a step in this direction,” he said. He urged NALSA to carry out nationwide sensitisation of police officers.
Free legal aid to the needy has its roots in the freedom movement. “Those days, the legal luminaries rendered pro bono services to freedom fighters, who were targeted by the colonial rulers. This spirit of service found reflection in the Constitution, with those very same legal luminaries serving as members of the Constituent Assembly.”
“If India wants to remain a society governed by the rule of law it is imperative for us to bridge the gap of accessibility to justice between the highly privileged and the most vulnerable. For all times to come, we must remember that the realities of socio-economic diversity which prevail in our nation, cannot ever be a reason for denial of rights,” CJI Ramana intoned. “If as an institution, the judiciary wants to garner the faith of the citizens, we have to make everyone feel assured that we exist for them. For the longest time, the vulnerable population has lived outside the system of justice.”
Pointing out that “prevailing obstacles like lengthy, painstaking and expensive formal justice processes add to the woes of realising the goals of Access to Justice,” CJI Ramana said: “As an institution, the toughest challenge before us is to break these barriers first.”
In these words, Chief Justice Ramana had combined his concerns for court reforms, civil rights and the fundamental concept of equal access to justice. His and the Court’s decisions right until last week have covered a wide gamut of social and economic issues that should be the concern of all Indians in search of a just and more humane world. They range from LGBT and women’s rights to the environment and freedom of the press.
India Legal covers the higher judiciary, with special emphasis on the apex court on a day-to-day basis in its magazine and on its widely-read website (www.indialegallive.com). This entire issue, celebrating Constitution Day, is devoted to the subjects covered under Chief Justice Ramana’s stewardship of the Supreme Court. Summarised below are some of the path-breaking judgments that reinforce and strengthen the Constitution and move the nation in the direction of more progressive thought:
- CJI Ramana and his collegium colleagues pushed recommendations for the appointment of 12 persons to five High Courts. This stand came at a time when High Courts need judges on a priority basis. The collegium has appositely sent a strong message to the government that it is constitutionally bound to implement its decisions.
- Constitutionalism and judicial duties were articulated accurately in the Supreme Court judgment penned by Justice NV Ramana over internet shutdown in J&K. It is hoped that the judicial voice is heard by all organs of the State and representatives of the people.
- In a significant verdict, a bench held that powers under Article 142 of the Constitution or that of High Courts under Section 482 of the CrPC can be invoked to quash proceedings under the Scheduled Castes and the Scheduled Tribes Act.
- In a laudable move, a bench headed by CJI NV Ramana announced the FASTER system whereby prisoners granted bail will no longer have to wait for a physical copy of the order to reach jails for their release.
- In a momentous move, the collegium recommended the elevation of senior advocate Saurabh Kirpal as a judge of the Delhi High Court. If approved by the Union government, Kirpal may become the country’s first openly gay judge in a constitutional court.
- Generally, when it comes to matters of national security, the courts have been wary of taking a stand. Not so under the tenure of Chief Justice Ramana who lost no time in taking up the case involving the Israel-origin Pegasus spyware which was given to the Indian government and allegedly used to spy on journalists and others. It was another example of the “Ramana Effect.”
- The call for Indianising the legal system should be taken seriously. This can be done by simplifying the language of law and judgments, which are often long, prosaic and difficult to understand.
- Aggrieved over the close links between the political class and the police, Chief Justice Ramana hit out at officers who wanted to be in the good books of the ruling party and misused the rule of law.
- In a welcome move, the chief justice said that the issue of women’s representation in the judiciary must be highlighted and debated. It deserves serious attention by all stakeholders of the legal profession.
- Giving valuable advice to the legal profession, CJI Ramana said that its primary aim should be to serve justice in its truest sense. Pro bono programmes can be the way forward and would act as a development tool for young lawyers.
- The CJI’s tenure has seen many firsts—appointments to courts, more women judges and elevation of lawyers. His boldness in promoting the rule of law should also be seen in expediting adjudication of cases.
- As the Patron-in chief of the National Legal Services Authority, Chief Justice Ramana has ensured that Pan India Legal Awareness and Outreach Campaign reaches more than 100 crore citizens of India.
- A Supreme Court bench headed by Chief Justice Ramana took a bold stand for freedom of information by directing Tripura not to take any coercive steps against two advocates and one journalist who had been booked by the state police under UAPA.
- As pollution threatens to throttle NCR, a three-judge bench of the apex court headed by CJI Ramana reprimanded and nudged governments to work together to control this menace.
As we said before, Happy Journey along a tough road!