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-affidavi t – 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.

Submit replies to court first before sending it to media: CJI NV Ramana

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