CJI Ramana: A Chief Justice Who Took Bold Decisions, When He Did Not Defer Them

Instead of a dismal chasm, NV Ramana leaves behind a big blank, which is now for the next CJIs to fill.

In the spring of 2021, when NV Ramana took over as the Chief Justice of India, the Supreme Court was abloom with hope.

His predecessors, former CJIs Ranjan Gogoi and SA Bobde, had left behind disappointing legacies, with one adjudicating a case that was against his own self, among other disappointing decisions, and the other refusing to take the Centre to task for its many failures in handling the COVID-19 pandemic.

But Justice Ramana – with his order against the Internet ban in Kashmir, vocal defence of fundamental rights and civil liberties and the very fact that he was part of the five judge bench that held that the office of the Chief Justice of India comes under the purview of the Right to Information Act – was going to be different.

And for the first few months, we were not disappointed. Praising CJI Ramana for his strict, no-nonsense approach in the Lakhimpur Kheri violence case (which led to the arrest of Union minister Ajay Mishra Teni's son Ashish Mishra), Senior Advocate Dushyant Dave had said on November 2021:

"...the court is being led from the front by CJI Ramana."

But a breath of fresh air is often only a breath. Relief is ephemeral. With the passage of time, hope began to fade.

Unlike his predecessors, NV Ramana's tenure will not be remembered as bleak – on the very day before retirement (for instance) he decided to allow review of certain troubling aspects of the top court's PMLA judgment. But it may be thought of as one big blank, that remains to be filled by those who come after him.

So much promise, yet somehow not enough got done.

The (Forgotten) Urgency of Pegasus Petitions

In October 2021, a bench led by CJI Ramana set up a technical committee to examine the use of the spyware Pegasus against Indian citizens. It disregarded the Narendra Modi government's insistence that this was a matter of national security and couldn't be gone into. Make no mistake, this was widely lauded as a firm act of standing up to the Executive — which it was.

But, since then, there has barely been any relief for the petitioners in the case.

As pointed out here, a key plea in all the petitions filed before the court regarding Pegasus was for a declaration that the use of this kind of military-grade spyware cannot possibly be legal. This is because it goes beyond mere interception of communications, and involves hacking. But there has, so far, been no judgment by the apex court in that regard.

As pointed out by Article 14, 11 petitions in this case were pending since 22 July 2021. Finally, on 25 August (a day before his retirement) a CJI Ramana led bench took on record the sealed cover report submitted by the technical committee.

The court also noted that the Technical Committee found malware in five of the 29 devices that were submitted to it, but did not conclusively state whether the malware was, in fact, Pegasus. The court also noted that the government of India did not cooperate with the Committee either.

But still, the court did not do much else, only wondered aloud which parts of the report to make public and which not.

"It is a huge report, let us see what portions we can give...These are technical issues. So far as Raveendran's report is concerned, we will upload on website..."

Not that this point needs further reinforcing, but it has been over thirteen months since we first heard of the possibility that the Israel-made spyware was being used to snoop on hundreds of Indian phone numbers.

Another point of indication to the worrying nature of the matter would be that some of the candidates approached by the court while appointing the expert panel had “politely declined this assignment” while others, according to the court, “had some conflict of interest."

Stating that he is perturbed by the knowledge of panel nominee's decline, former finance minister P Chidambaram had tweeted: "This episode illustrates how far we have travelled from the exhortation of Mahatma Gandhi that Indians should not fear their rulers.”

So how did the Supreme Court and its outgoing CJI not experience this gnawing urgency to deal firmly, and at the earliest, with this matter?

Lingering/Intensifying Concerns Post Sedition Order

Several people had also applauded the temporary suspension ordered by a CJI Ramana-led bench on the implementation of the sedition law. But this was without regard to the concerns that continued to linger, and were perhaps even intensified, in its wake.

These concerns include that in a bid to stifle dissent and with sedition in temporary abeyance, other more stringent laws (like the UAPA) may be applied, even more liberally. Further, the government is free to add excessively harsh provisions to other laws – just as the UPA government did to the UAPA after repealing POTA.

Besides, the freeze on sedition paves way for bail for those who have only been booked for sedition. Those who have been charged with sedition and any other cognisable offence (like the Bhima Koregaon accused and Kerala journalist Siddique Kappan) continue to be incarcerated.

What the court should have perhaps ideally done is hear the matter on merits, and put a permanent ban on the application of the sedition law, given how CJI Ramana had himself said in July 2021: “Sedition is a colonial law. It suppresses freedoms." The court should have also warned against the misuse of similarly stringent provisions and upheld the value of free speech and other fundamental rights.

If the ball (of reviewing the sedition law) was to remain in the Centre's court, they could have at least laid down some guidelines for the Centre to follow while drafting and amending such laws in the future.

An Unabated Storm & An Army of Pending Cases

But the apex court's failure, during CJI Ramana's tenure, to firmly deal with these concerns was only a few bricks in this big, red wall of disappointments. A storm of other pressing issues has been left unabated.

Recently the country was witness to a series of dubious demolition exercises, which fall within an existing pattern of hounding via (arbitrarily applied municipal laws) mostly Muslim people accused in different cases.

As the highest court in the land, the Supreme Court had the power to issue directions to prevent these demolitions. The top court even actually did it, when a demolition bid was underway in Delhi's Jahangirpuri.

But unfortunately, when senior advocate Kapil Sibal asked for an order of nationwide applicability during the Jahangirpuri case, Justice Nageswara Rao chided him saying:

“Once we have passed orders in one case you still think something (more demolitions) will happen?”

But the top court's status quo order in Delhi, albeit appreciable, does not seem to have had any impact on other states.

There are also several other matters of consequence to the secular fabric of this country that went unaddressed even during CJI Ramana's tenure.

These include, the appeal against the Karnataka High Court's judgment on hijab ban. This has immediate consequences for Muslim girls looking to get an education, forced to make an unfair choice which is clearly violative of Articles 14, 15 and 25 of the Constitution.

Responding to requests for urgent listing of the case, CJI Ramana had, according to Article 14, said on 26 April: “wait for two days”, and on 13 July: “It will be listed sometime next week.”

Most recently, on 2 August, he was requested a hearing again.

A petition, seeking guidelines on hate speech and regulation of the same in the media, which were initially taken up by Justice Chandrachud following the UPSC Jihad row, also awaits further hearing.

Then, there is a challenge to a Union government reservation policy that only takes economic criteria and not caste factor into account, that also remains pending.

Further, challenges to the abrogation of Article 370 in Jammu and Kashmir and to the opacity of electoral bonds have gone unattended in the top-most court of the country.

But Still, CJI Ramana's Tenure – Not Without Bright Spots

But as stated above, Ramana’s tenure was not bleak, which is to say that it had its bright spots — some quite gleaming in fact.

On his very last day before retirement, CJI Ramana, in a bold move, opened up former Justice Khanwilkar's PMLA judgment for review in so far as the following aspect of the judgment are concerned:

• Regarding the non-providing of ECIR

• Reversal of burden of proof and presumption of innocence

The 545-page judgment has come under severe criticism for effectively allowing the ED to retain a lot of brazen powers, thereby giving constitutional (right to property) and fundamental rights (right to liberty) a skip. The concerns emanating from the judgment included those pertaining:

• To ED’s power to carry out arrests without mandatorily registering (and providing to the accused a copy of) an ECIR

• To the burden of proof that falls upon the accused in proceedings for attachment of property, as well as in the criminal trial for money laundering

But there are several other issues with the Khanwilkar judgment that need addressing - for instance, the court upheld the “twin conditions,” under Section 45 of the Act that make bail extremely difficult, and the admissibility of statements recorded during the course of investigation (including those which may be self-incriminating).

Besides, on Tuesday, in a judgment relating to the Benami Transactions Prohibition Act 1988, a different Ramana-led bench had said (with regard to the judgment allowing ED to take possession of the property before trial in exceptional circumstances):

“Having perused the said judgment, we are of the opinion that the aforesaid ratio requires further expounding in an appropriate case, without which, much scope is left for arbitrary application.”

Thus while several aspects of the judgment warrant a relook, CJI-Ramana, on Thursday, categorically emphasised on review of the ECIR and presumption of innocence aspects.

Still, one has to acknowledge Ramana for that. Because this was a judgment by a three-judge bench of the top court itself, and if anything, power of review is exercised sparingly.

The very fact that CJI Ramana made way for reconsideration of at least some of the troubling aspects of the order, right before he demits office, despite the Government's vehement opposition to this –"Error in judgment cannot be a ground of review!" Solicitor General Tushar Mehta had insisted – reinforces the idea that CJI Ramana was not afraid to take an unconventional stand, even if it meant taking a stand against the Centre.

This is something that cannot be said with such certainty about some of his immediate predecessors.

Besides, in his last few weeks at the Supreme Court, Justice Ramana assigned Mohammad Zubair's bail plea to a bench led by Justice DY Chandrachud – a known proponent of press-freedom, who had also granted bail to TV news personality Arnab Goswami in an abetment to suicide case.

Further Ramana also permitted a review of Gujarat Government's order granting remission to the eleven men convicted of gang-rape and murder in the Bilkis Bano case.

So Why the Criticism?

The fact remains that a lot of criticism of Ramana's tenure is because often his words spoke louder than his actions. He is the same man who gave lectures and speeches, in which he said things like:

“It is necessary for us all, the citizens of the world, to work tirelessly to sustain and further the liberty, freedom, and democracy our forefathers have fought for.”

“Jammu and Kashmir is the confluence of three great religions – Hinduism, Buddhism and Islam… it is this confluence which is at the heart of our plurality which needs to be sustained and cherished.” (Quoting poet Raja Bose)

“Expeditious adjudication of disputes is the hallmark of a healthy democracy and denial of justice will ultimately lead to anarchy."

And yet matters of pressing pertinence (such as the ones listed above), even during his tenure, went unheard, unlisted or un-adjudicated.

The problem is, Ramana by virtue of his vocal espousal of the values enmeshed in our constitution filled our hearts with hope. But when matters kept getting deferred, in a very tareekh-pe-tareekh way and petitioners continue to languish in indefinite wait, that hope slipped away.

Conclusion

Still, as a senior advocate anonymously told me:

"He decides rightly whenever he decides, but postpones often."

And perhaps, that is why how we will remember CJI Ramana: one who made several bold and correct decisions, paying heed to India's constitutional values; BUT only, when he did not defer them.

If nothing else, the Supreme Court did not slip further into the embrace of the Executive under NV Ramana.

Not a dismal chasm, but Ramana does still leave behind a big gap between expectation and delivery. That gap is now for Justice UU Lalit and shortly thereafter, for Justice DY Chandrachud, to fill. We are waiting with bated breath to see in which direction do they push this cart court.

(With inputs from Bar and Bench, Live Law, Article 14 and Vakasha Sachdev.)