Above: Supreme Court/Photo: Anil Shakya

A year-end analysis of key controversial issues the apex court will have to confront when it reconvenes after its winter break

By Venkatasubramanian

The Chief Justice of India (CJI), Ranjan Gogoi, was at his best when he delivered the inaugural address at a Constitution Day function held in the Supreme Court on November 26. Recalling the day (November 26, 1949) when our founding fathers subscribed to the constitutional document and unfolded the social, economic and political philosophy for the governance of free India, he emphasised that it brought hope to the hearts of many Indians, heterogeneously living in the nation.

He dwelt on the initial criticisms voiced against the Constitution and how time has weakened them in due course, even if they were valid at the time of its inauguration. One such criticism was by Ivor Jennings, who said it was too large and therefore, far too rigid. There can be little disagreement with the CJI when he said that the vigour with which the Constitution has moved on in the last seven decades is testimony to its resilience.

Then he addressed another criticism voiced by a founding father of the Cons­ti­tu­tion. A member of the Assembly, this individual was quoted as saying that what was needed was “the music of the Veena or the Sitar”, but they got an “English band” instead. The member, whom the CJI did not identify, was none other than Kengal Hanumanthaiah. He was a member of the Constituent Assembly, representing Mysore and the Indian National Congress. Some of his ideas were indeed incorporated in the Constitution: federalism and a parliamentary system of government, with the president being indirectly elected. Des­pite the many foreign influences, the Constitution provided the space and opportunity for indigenous forces to internalise it. Hanumanthaiah became the second chief minister of Karnataka in 1952, and later became the Union minister for law and social welfare, and later railways in the early 1970s. His hostility to things foreign mellowed as he gave up his demand to demolish the Karnataka High Court for representing the colonial vestige in India. But he could ensure that the architectural style of the Vidhana Soudha, located opposite the High Court, was Indian.

The CJI’s purpose in recalling Hanumanthaiah’s words was to drive home the point that despite many foreign influences in its making, the Indian Constitution has today become an integral part of the Indian people. To prove his point, he referred to “astounding variety of issues that courts hear daily”.

It appeared as though the CJI had left many things unsaid about these two things: while the people consider the Constitution an integral part of their daily lives and seek justice from the courts on various issues affecting them, those who practise the Constitution day in and day out—lawyers and judges—have not been inspiring enough to strengthen the people’s trust in it.

This was alluded to by none other than Attorney General (AG) KK Venugopal, when he alleged in the open court that the bench, presided over by CJI Gogoi, was dismissing matters without hearing them and that this was unfair to the litigants who had come to the apex court from far, seeking justice. The CJI took the AG’s comment in the right spirit, and promised to make amends. But the feeling that the Court, in its anxiety to expedite hearing of matters before it, compromises on the quality of hearing and thereby the people’s trust in it, persists.

The key element of such trust is the independence of the Judiciary which can protect the Constitution against all odds. On this issue, the signals during the first three months of the current CJI’s tenure have been rather mixed. While there is a case for greater understanding and cooperation between the Judiciary and the Executive on administrative matters like filling up vacancies of jud­ges, provision of infrastructure for the Judiciary at all levels, etc, there should be little interaction between the two or­gans on pending matters before the Judi­ciary as the government is the major litigant.

Thus, the CJI could fill vacancies in the Supreme Court and High Courts with considerable ease as compared to his predecessors, who had run-ins with the centre.

Four new judges joined the Supreme Court on November 2: Justices Hemant Gupta, R Subhash Reddy, Mukesh Kumar Rasikbhai Shah and Ajay Rastogi. Of them, Justice Shah’s elevation caused surprise, if not criticism, as he had publicly praised Prime Minister Narendra Modi as his hero. Justice Kurian Joseph, who was part of the Supreme Court’s Collegium which recommended Justice Shah’s elevation from the Patna High Court where he was chief justice said if Justice Shah had said so, it was his view.

Meanwhile, Justice Joseph retired on November 29, while Justice Madan B Lokur’s term ends on December 30. The number of vacancies in the Supreme Court, which has a sanctioned strength of 31, will then be five. Two more judges will retire next year during the current CJI’s term: Justice AK Sikri in March and Justice Abhay Manohar Sapre in August.

QUIET DIPLOMACY

In Justice Joseph’s view, there is nothing wrong in the CJI interacting with the centre to resolve pending administrative issues. His reaction was sought to the CJI meeting Modi when the latter wanted to visit Court No. 1 in the Supreme Court on November 25. CJI Gogoi had invited the prime minister to attend a dinner he was hosting for judges from the BIMSTEC countries—Bangladesh, Bhutan, Myanmar, Nepal and Thailand. After all, the CJI met the prime minister, in the presence of other judges, not alone, Justice Joseph underlined.

Only a few days earlier, the centre acquiesced to the CJI when the latter insisted that Justice Akil Kureshi of the Gujarat High Court, before his transfer to Bombay High Court, be designated as the Acting Chief Justice (ACJ) of the Gujarat High Court for two weeks. The centre had initially named his junior, Justice AS Dave, as the ACJ of the Gujarat High Court, but later relented before the CJI. It was still unclear, however, why the Collegium recommended Justice Kureshi’s transfer to Bombay High Court when he could have continued as ACJ in Gujarat High Court. The CJI intervened again when the Gujarat High Court Bar was on the verge of a prolonged agitation against Justice Kureshi’s transfer. He defused the crisis by giving an audience to its members and seeking their cooperation in the interest of the institution.

CONTROVERSIAL JUDGMENT

Since assuming office as CJI, Justice Gogoi has authored just one judgment. This is perhaps to focus more on administrative issues. His colleagues on the bench, Justice Sanjay Kishan Kaul and Justice KM Joseph, together authored eight judgments.

But the only judgment CJI Gogoi authored—Manohar Lal Sharma v Narendra Damodardas Modi—raised serious questions about the procedure adopted by the bench presided over by him, and was subjected to trenchant criticism by civil society. The case—relating to the procurement of 36 Rafale fighter jets for the IAF—was decided in favour of the centre. The concerns expressed by the petitioners over non-compliance with established procedures and allegations of commission of offences under the Prevention of Corruption Act were simply brushed aside as devoid of merit. The bench, without any convincing reasons, decided that the deal between India and France for the procurement of the jets required no intervention by it, let alone a roving inquiry by it as it was satisfied that there was no reason to doubt the process.

The centre was accused of misrepresenting to the Court that the Comptroller and Auditor General of India (CAG) had submitted its report over the pricing of the jets, and that the Public Accounts Committee (PAC) of Parliament had examined it. The misrepresentation became the basis of a factual error which crept into the judgment. The centre, in a fresh application before the Court, sought corrections in the judgment, saying some words mentioned in its report submitted to it in a sealed cover got twisted to convey a meaning contrary to facts.

The centre claimed that it only sought to convey the normal procedure with regard to consideration of the CAG report by the PAC, and not the facts as such. The words, “the report of the CAG is examined by the PAC”, became “the report of the CAG has been examined by the PAC” in the judgment. “Only a re­dacted portion of the report is placed before the Parliament and is in public domain” became “only a redacted portion of the report was placed before the Parliament and is in public domain”.

While the Court adjourned for the Christmas and New Year vacation on December 14, the controversy over whether the bench ought to recall its judgment in the wake of the faux pas raged. Critics of the judgment found it odd that the bench, comprising judges known for their judicial acumen, could accept the claims of the centre at face value rather than subject them to serious scrutiny. Others wondered whether the jurisprudence of “sealed covers” adopted by the bench to keep undisclosed the pricing details shared with it by the government was appropriate to deal with such cases.

Substantial errors, on which the judgment was based, went unnoticed because the petitioners were unaware of what was mentioned in the sealed covers, it was pointed out. Others were outraged that the Court frequently resorted to sealed covers to decide issues of governance and felt it would alienate the public who consider the Constitution an integral part of their lives. Dismissal of petitions raising serious issues of public interest and alleging violation of fundamental rights on the basis of contents in sealed covers would shake the confidence of the people in the courts, be­sides widening the gap between them and the judiciary, it was felt.

While the controversy over the Rafale judgment is unlikely to die down when the Court reopens next year, another bench of the Supreme Court quietly turned down the centre’s demand that it should not monitor the CBI’s probe into the extra-judicial killings in Manipur by the armed forces on the ground that the morale of the latter was likely to suffer. The bench of Justices Lokur and UU Lalit dismissed the centre’s plea seeking its recusal from continuous monitoring of the case, saying the morale of the armed forces is not likely to suffer erosion by inaccurate reporting of the observations of the judges dealing with the case.

Justice Lokur, whose last working day was December 14 (as he retires on December 30, 2018), observed at a farewell function organised by the Supreme Court Bar Association: “It is very important to maintain the independence and integrity not only of the judiciary, but also of the Bar; Bar has to remain independent and cannot be subordinate to the Bench or to any other authority or institution.”

When the Supreme Court reopens after the holidays, the independence of the Bar as well as the bench will be on trial in the wake of its Rafale judgment and the likely outcomes of cases relating to the CBI’s internal crisis, right to worship for women of menstruating age at Sabarimala (review) and the Babri Masjid title dispute.

The outcomes in these cases will show whether the judiciary has been able to uphold the people’s confidence in it by fulfilling its role as a neutral and unbiased arbiter, while narrowing the gap between the Constitution’s promise and performance.