Important words, not enough action
Justice Ramana’s tenure as the CJI witnessed the evolution of a curious “jurisprudence” where cases and issues were rendered stale, infructuous and nugatory merely by not listing them for a hearing.
The primary role of a judge of the Supreme Court is to expound and lay down the law for all other courts and citizens of the country to follow. In this, the role of the Chief Justice of India (CJI) is pivotal as he is the head of the judiciary who can exercise a plenitude of power that no other judge in the country can wield.
As India’s 48th CJI, justice NV Ramana demits office, the time is ripe for a dispassionate analysis of the tenure of a judge who managed to keep up the stature, authority, and dignity of the Supreme Court that had appeared to be fraying in view of controversies surrounding his predecessors, but whose courtroom performance presented a stark contrast to his rather prolific public comments espousing speedy justice, rule of the law, and the protection of civil liberties of citizens.
Justice Ramana began his stint on a high note by questioning the sedition law in India, and agreeing to examine if the government used Pegasus spyware to snoop on its citizens. Later, in October 2021, he also initiated proceedings on own motion (suo motu) in the Lakhimpur Kheri incident, which left eight people, including four farmers, dead in October 2021. However, as time went by, the gap between judicial earnestness and action started to come to the fore.
As the “Master of the Roster,” justice Ramana had the exclusive authority to decide which cases in the top court would be listed, when they would be listed and before which judges they would come up. Despite having a reasonably long tenure of 16 months, he did not list even a single case before a constitution bench though that there were dozens of cases pertaining to key government policies and legislations, and issues of crucial constitutional importance that cried out for the top court’s attention. To be sure, the court met physically for less than 60 days during his tenure, but there were still things it could have taken up.
Constitution bench cases such as the abrogation of Article 370, the law to provide for reservation for the Economically Weaker Sections (EWS), and passage of Aadhaar and PMLA as money bills, remained untouched. Justice Ramana fixed May 11 for listing of the matter involving the power tussle between the Centre and the Delhi government before a constitution bench, which has not sat to date. Earlier this week, he fixed the case on the Maharashtra political crisis case for Thursday, but again, the bench never sat. A bunch of cases challenging the sedition law in India was also directed by him to be listed in the second week of July but did not come up till his retirement.
Even some cases that did not require the strength of five judges but were considered “sensitive” were not listed for effective hearings. The validity of the electoral bond scheme as a tool of political funding was last listed in March 2021; the challenge to the Citizenship (Amendment) Act was last heard in June 2021; petitions against Unlawful Activities (Prevention) Act (UAPA) provisions were last considered in November 2021.
Justice Ramana’s tenure as the CJI witnessed the evolution of a curious “jurisprudence” where cases and issues were rendered stale, infructuous and nugatory merely by not listing them for a hearing.
A clutch of petitions related to a ban on the hijab in Karnataka’s educational institutions has been pending in the Supreme Court since March, and lawyers have made repeated requests before justice Ramana to list those cases. Every time the request was made, justice Ramana would respond that one of the judges (whose name he didn’t disclose and whose identity remains unclear) was supposed to hear the case but was unwell. The hijab issue required adjudication before the summer examinations in the state. By simply not listing those cases even till the end of August, justice Ramana has presented the aggrieved parties with a veritable fait accompli.
It was a common sight to see a long queue of lawyers before justice Ramana at 10.30 in the morning “mentioning” cases, and complaining that their cases were not listed even once although they were filed months ago.
On Wednesday, when lawyers tried to speak over each other for getting their cases listed, justice Ramana sought the intervention of senior advocate Vikas Singh, who is also the president of the Supreme Court Bar Association. But Singh retorted: “All this will not happen if cases filed months ago were getting duly listed for hearings”.
Minutes later, senior advocate Dushyant Dave (who broke down in tears during his farewell speech for justice Ramana on Friday inside court) also complained. “Our cases are not listed because we don’t not have money like the corporates. Our fresh petitions never get listed despite making several requests whereas corporates can get their cases listed whenever they want,” Dave claimed.
Sitting in the first court for the last time, justice Ramana expressed his apology for not being able to give sufficient attention to listing of cases while highlighting the importance of reforms in the manner in which cases get listed in the Supreme Court. Experts have pointed out that matters of constitutional import and of public importance, if not decided immediately when they are topical and impact the citizenry of the country, run the risk of becoming an academic exercise in adjudication, and may well benefit the executive.
Justice Ramana sprang into action in the last week of his tenure, after the President had already announced justice Uday Umesh Lalit as the CJI-designate, and took up cases with a zest and speed hitherto unseen.
Consider this: With two days to retire, justice Ramana took up the Pegasus snooping row case and announced he was looking at the expert panel’s report for the first time as he dramatically tore open the sealed cover envelope in open court, read it for a few minutes and then promptly consigned it back to the dark dungeons of the record room to be “looked into by a future bench”. The report was submitted in July but the case was listed only on Thursday when evidently there was no time left for the outgoing CJI to even determine the administrative aspect of sharing the copy of the report with the parties, let alone substantially hear the case on merit. In the end, the report was re-sealed and relegated to a new bench.
The freebies case is another example. He took up the PIL, which apparently entailed a political thicket and was filed only in January this year, while thousands of other PILs and cases gathered dust in the court registry. Justice Ramana heard it several times in the last two months, only to leave it to a new bench to decide the future course of action. His repeated sermons on the need for a committee to look into the issue did not find favour with several parties nor could he pass any order, eventually leaving the matter unresolved.
On Thursday this week, justice Ramana also took up the matter related to Prime Minister Narendra Modi’s security breach in Punjab in January this year. Following a five-minute hearing, the court-appointed panel’s report was resealed and sent to the Centre and the state government, without the bench passing any orders.
Further, knowing that he could be a part of that bench only for a day, justice Ramana heard on Thursday a review petition challenging the Supreme Court’s July 27 verdict that affirmed certain controversial provisions of the 2002 Prevention of Money Laundering Act (PMLA). Notices were issued, and the matter was left to a new bench. Likewise, notices were issued in a petition against the grant of remission to convicts in the Bilkis Bano case and the matter was sent to a new bench. Both these cases were filed during the same week and justice Ramana chose to list them before himself, making one wonder why, especially when it was judicially inconceivable for justice Ramana to take them to a logical end.
This is not to say that justice Ramana did not create important headlines. He did, especially for his performances outside the courtroom . From book release functions to college convocations; from events involving social and spiritual leaders to functions relating to the judiciary; from visiting temples in India to visiting institutions on foreign shores, justice Ramana was an avid traveller and a keen speaker, usually over weekends.
His speeches covered a wide spectrum of issues, including the rule of law, democracy, fundamental rights, and the importance of judicial review. In one instance, for example, he talked about how access to Justice is a tool for social emancipation; in another he lamented the long delay in the criminal justice system from arrest to bail; In Germany, he talked about how the Indian judiciary eternally guards the constitutional rights in the world’s largest democracy.
Even as these speeches and appearances outside the court lent reassurance to the public on the efficacy and concerns of the highest judiciary, they were incongruent with the massive pendency the court faces.
The Supreme Court currently has at least 71,400 cases pending. When justice Ramana took over as CJI in April 2021, a little over 67,000 cases awaited disposal. The statistics available on the Supreme Court website disclose that as on August 1, a total of 492 constitution bench matters, involving 53 main cases entailing crucial questions of law and constitutional interpretations, remained pending. Of 492 cases, 342 are five-judge bench matters, involving 41 main cases. The number of cases to be considered by seven-judge benches is seven main and eight connected matters. Further, there are five main and 130 connected matters pending before nine-judge benches.
Having not been able to do enough on the judicial side to match the concerns expressed in his speeches or enough on the administrative side in listing cases, justice Ramana did succeed in pushing for judges’ appointments in high courts and in the Supreme Court.
Heading the collegium, he took on board his fellow judges as more than 200 appointments were made across the high courts. His tenure also saw a record number of nine judges joining the Supreme Court in August last year, while paving the way for one of them, Justice BV Nagarathna, to become the first woman CJI in 2027.
But these appointments did come at a price. Justice Akil Kureshi, despite being number two in the list of seniority of high court judges, was apparently sacrificed due to the Centre’s adverse opinion about him. Kureshi retired in March this year from the Rajasthan high court. A five-year stalemate over the appointment of senior advocate Saurabh Kirpal, who is openly gay, as a judge in the Delhi high court also remained a thorn in the flesh that justice Ramana could not address. He was also unable to conclude the process of designating senior advocates in the Supreme Court.
Justice Ramana’s tenure will be remembered as one that appeared to initially reinforce the standing of the country’s highest court -- but he himself will be remembered as someone who made much more news for what he said than what he did as the first judge of the country.
