A little over a year back, on April 24, 2021, when Justice Ramana was sworn into the office of Chief Justice of India (CJI), we were hoping for some change. The tenures of the previous two Chief Justices were mired in controversies of all sorts, ranging from allegations of sexual harassment to a complete stand-still in the appointment of Supreme Court judges owing to a deadlock in the Collegium. The Court's record on civil liberties was under a shadow and the number of important constitutional issues left undecided was on the rise.
The Supreme Court, and in particular, the office of the Chief Justice, seemed to have taken a plunge and we hoped that Justice Ramana would salvage it, at least partially. Such was the expectation, given that as he was someone who was a product of Emergency era politics, he was personally familiar with the excesses the State is capable of. His history also led to the expectation that his experience in political activism for the downtrodden may lead us to a more active court.
No doubt he had a good start – a week into his tenure, he ordered the Uttar Pradesh government to shift journalist Siddique Kappan to Delhi for better medical attention, despite strenuous objections from the government.
A year later, as we move closer to his date of retirement, it seems that there has been more speech and less action, as important cases involving questions of constitutional order remain undecided. In the coming days, we are bound to read more evaluations of his performance on the Bench – about how many judgments he wrote, who got appointed to the constitutional courts during his tenure, what where the important decisions and what he did not decide. But there is also a need to take a closer look at how he has decided what has been decided and what that signifies.
For this, let us choose three significant cases where a Bench that Justice Ramana headed was willing to go against the position of the government in one way or another.
Before he became the CJI, Justice Ramana was tasked with deciding the challenge to internet shutdowns in Jammu & Kashmir in the wake of the abrogation of Article 370 of the Constitution.
Anuradha Bhasin is a classic example of a peculiar judicial technique that the Supreme Court has perfected over time – of laying down the law in terms of upholding civil liberties, but refusing any effective relief to the petitioner(s).
While the Court laid down fetters on the power to impose internet shutdowns, instead of quashing those orders that went against the law, it directed a review of those orders by the same authorities that issued them in the first place. With Bhasin, the Court in fact appears to have gone a step further to entrust the executive with a power that is essentially judicial – to review the correctness of an executive action as against the law.
What we witness here is a form of transference of the power to decide – one that we witnessed once again in the Pegasus order, where rather than deciding on the merits of the case, the Court transferred the power to determine the facts in issue and the reliefs to be granted. This, despite the fact that the government refused to controvert the allegations against it by way of a proper counter-affidavit – when ordinarily a lack of adequate specific denial in pleadings would only be construed as an admission.
In Vombatkere, the Central government filed an affidavit that requested the Court to refrain from hearing the challenge to the validity of Section 124A of the Indian Penal Code, which criminalised Sedition, as the provision was being reconsidered by the government “before an appropriate forum where such reconsideration is constitutionally”. While traditional wisdom tells us that deciding on constitutionality was a judicial function, the Court in its wisdom ordered that it hoped and expected the governments to refrain from using the said law, till such time the government decided its fate. Even if the government chose to ignore these hopes and expectations and go on to initiate an investigation, it was left to the appropriate court to “examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India”. In substance, the government demanded the Court to defer to its process for deciding constitutionality, and the Court readily agreed to this.
Essentially, even when the Court under CJI Ramana was willing to pass an order against the government, it was only through processes of deference to the government or transference of judicial power. For sure, this is not unique to him, and one can think of several other benches that have adopted a similar trajectory when deciding against the State. To that extent, one can only say that his tenure was not very different from that of his predecessors.
That being said, the Siddique Kappan order was one instance when there was willingness to pass an order against the desires of the government. In a strange twist of fate, it appears that the case with which he began his public face as Chief Justice will get listed again on his last day in that office. We are yet to know whether it will be listed before him or another bench, but irrespective of that, we will at least get to know whether it would be deferred or transferred.
Mahesh Menon is currently a Doctoral Candidate at Lund University in Sweden. He is on a sabbatical from School of Law at Sai University, Chennai.
Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.