On April 24, NV Ramana completed one year as the Chief Justice of India. Taking charge after some of the most controversial years at the Supreme Court under the chief justiceships of Dipak Misra, Ranjan Gogoi and Sharad Bobde, where the court increasingly bent in the executive’s favour, many thought Ramana would restore the “lost glory” of the court.
“The bar was set so low by the outgoing chief justices, whatever he [Ramana] would do would only be an improvement,” senior advocate Sanjoy Ghose explained. “There were great expectations.”
However, several lawyers and legal commentators believe Ramana’s tenure has actually seen little forward movement. The Supreme Court has either not listed critical cases or not taken any action despite, in some instances, beginning hearings. On other fronts, there have even been reverses: with respect to judicial appointments, the Centre now seems to enjoy primacy over the judiciary.
Important cases
As the “master of the roster”, the chief justice determines when cases are listed and before whom in the Supreme Court.
At present, many cases of immense significance have been pending before the Supreme Court for years. Noting the one-year completion of Ramana’s tenure, legal commentator Gautam Bhatia pointed out, “Not a single significant pending constitutional case has been decided.”
The legality of electoral bonds, which allow political parties to receive unlimited anonymous donations, has been under challenge since 2017. The last the court heard the case was in March 2021. The challenge to the abrogation of Article 370, which took away Jammu and Kashmir’s special status and stripped away its status as a state, has also been pending before the court for almost three years. It was last listed in March 2020.
The Pegasus case, on the Union government allegedly using military-grade spyware to snoop on its critics has also been pending before the court. In a much-lauded interim order last October, a bench led by Ramana said that the government cannot evade answers under the garb of national security. It also formed a technical committee to investigate the case. However, there have been no subsequent developments since then.
Apart from these cases, a number of other important petitions are pending as well. These include cases relating to the legality of the Citizenship Amendment Act 2019, which allows non-Muslim undocumented migrants to apply for Indian citizenship, the review of the Sabarimala case, which will decide if women of menstruating age can enter the Sabarimala temple in Kerala and the legality of the hijab ban in educational institutes in Karnataka.
Amongst the few cases that have seen forward movement is the Lakhimpur Kheri case, where the son of a Union minister allegedly ran over farmers protesting against the farm laws passed by the Centre. On April 18, a Ramana led bench cancelled bail given to Misra by Allahabad High Court and asked him to surrender.
Judge’s appointment
In August, Ramana, in a first, managed to appoint nine judges to the Supreme Court, including three women judges. This marked an end to a 22-month deadlock in the appointment of judges. However, one missing name raised eyebrows: that of the former Rajasthan High Court Chief Justice Akil Kureshi. Despite being the second senior-most High Court judge in the country, Kureshi was ignored for elevation, with critics alleging it was due to him delivering judgments against the current government.
While Ramana reduced judicial vacancies, during his tenure there emerged a trend of the Centre taking the lead in appointing judges.”
The Centre now often “splits” appointments, where it clears some recommendations made by the collegium while sitting on others. There have also been instances where even after the collegium has reiterated names, the Centre has not appointed them.
In India, the Supreme Court collegium, headed by the chief justice and comprising of senior-most Supreme Court judges, makes recommendations to the Centre for appointments to the Supreme Court and High Courts. The Centre then vets these recommendations and makes the appointment.
As per law, the collegium has the primacy in making appointments and if there is a disagreement and the collegium reiterates a name, the Centre is bound to accept it.
This primacy seems to have been slipping under Ramana’s tenure leading to worries that judicial independence could get impacted.
“Akil Kureshi’s non-elevation will remain a blot,” legal academic Anuj Bhuwania told Scroll.in. “Now the collegium has also stopped pushing back on appointments. The government can just sit on names it does not want to appoint as judges. This is not how the collegium was supposed to function.”
The final verdict
While several commentators believe that while the Supreme Court has worked better under Ramana than his immediate predecessors, it still has not lived up to the expectations of a constitutional court.
“The Indian Supreme Court is supposed to play the role of a shield against the excesses of the state, which it has not been playing for a long time now,” Bhuwania explained. “On the other hand, it has often played the role of a sword in the hands of a state. Under Ramana, there has been respite of the court being used as a sword by the state but there has not been enough of the court shielding against the acts of the state.”
He added: “The court has not fulfilled our minimal expectations of a constitutional court, that is, hearing cases of urgent importance to the polity. In other cases, it has been docile and has not pushed back against the government even in egregious instances.”
Lawyers also point to Ramana’s public statements, which often talk of the importance of an independent judiciary and keeping the executive in check but are not backed by actions.
“Overall, I would say that it is a case of disappointment because now we have reached a stage where much more than positive sound bites in seminars is required,” Ghose said. “We require actual hearings and actual decisions. A message needs to go out that the court is independent and will not in any way be cowed down by the executive.”