"There are decades where nothing happens; and there are weeks where decades happen."Vladimir Ilyich Lenin
While there are years in which the Chief Justice of India remains unchanged, 2022 saw three different CJIs.
The Supreme Court was helmed by NV Ramana in the beginning, UU Lalit in the middle, and DY Chandrachud towards the end. And each CJI brought his own flavour, lent an element of his own personality to the system.
The Three CJIs
Ramana ought to be credited for disrupting the bleak legacy of his predecessors and shifting the tilt of the judiciary away from the executive.
He was lauded for his tough approach in the Lakhimpur Kheri violence case (leading to the arrest of Union minister Ajay Mishra Teni's son Ashish Mishra) as soon as he assumed office in 2021. And right before his exit, he allowed review of some troubling aspects of the top court’s PMLA judgment, despite vehement Government opposition – “error in judgment cannot be grounds of review," the Solicitor General had insisted.
Lalit, on his part, deserves applause for making significant administrative improvements and just getting things done despite his short tenure.
Just 10 constitution benches had convened since the year 2000, but in just weeks of Lalit's tenure, six constitution benches ran simultaneously. He also paved way for live-streaming of constitution bench proceedings.
Further, some of his orders, such as those granting bail to activist Teesta Setalvad and journalist Siddique Kappan will be remembered as a win for right to liberty, even as one might wonder why, when he was master of the roster, did a special bench urgently convene on a Saturday to smother the slight possibility of freedom for former professor GN Saibaba.
Meanwhile, CJI Chandrachud has already displayed a willingness to stand up to the executive and defend independence of the judiciary, amid a deluge of political opinion and attempts to undermine judicial decisions; reminding all and sundry:
"When you sit here, no case is too small for the Supreme Court and no case is too big. Because we are here to answer the call of conscience and the cry for liberty of the citizens."
So, can one confidently assert that this year was marked by strong judicial pronouncements?
Yes, but not entirely.
Teesta Got Bail, But...
For instance, a bench led by CJI UU Lalit did grant interim bail to Teesta Setalvad, noting that there was nothing that she was charged with that could bar her from getting bail – a decision which was widely appreciated.
But can one really forget the chain of events that led to her incarceration?
For the (still) uninitiated, it started with the apex court's dismissal of Zakia Jafri's plea challenging the SIT's clean chit to high state functionaries in the Gujarat riots. In that judgment, the top court had made suggestions about there being a “coalesced effort” and a “devious stratagem adopted to keep the pot boiling” for “ulterior design”.
The apex court is unquestionably free to dismiss any plea it (dis)likes. But in casting these far-reaching aspersions, it appeared to contradict its own the principles of “sobriety, moderation and reserve”. The Supreme Court had spelled these principles out in 1963 in The State Of Uttar Pradesh vs Mohammad Naim, and they have long governed judicial pronouncements across the country.
What followed within hours, were Home Minister Amit Shah's disparaging remarks against petitioner number two Teesta Setalvad, alleging that she had “exploited” Jafri. Shortly afterwards Setalvad was picked up by the Gujarat crime branch from her home in Mumbai.
Setalvad was booked under forgery and conspiracy related sections of the Indian Penal Code (IPC). However, the FIR on the basis of which she as detained, quotes heavily from the Supreme Court judgment in the Zakia Jafri case.
Legal experts have also expressed concern about such judgments having a chilling effect on other citizens who hope to approach the court with concerns pertaining to the conduct of powerful people.
And What Some Journalists Face...
Then there was Justice Chandrachud's judgment granting bail to journalist Mohammed Zubair (after he was arrested in a storm of cases pertaining to his tweets), which was rightfully applauded as a win for press freedom.
However, it came after Zubair had already spent a month in jail, with several other courts of the country denying him liberty.
And while Zubair finally got to return home, several others, like Kashmiri journalists Fahad Shah and Sajad Gul remain in custody – rendered immobile by a multitude of FIRs and preventive detention orders.
Three months after bail in a UAPA case, post two years of incarceration, journalist Siddique Kappan too is yet to come home to his family. Last month, a local court in Lucknow decided to deny him bail in a PMLA case.
Finally, on 23 December, the Lucknow bench of the Allahabad High Court noted that except for the allegations that Rs 5,000 was transferred in the bank account of his co-accused, there was no other transaction that could be linked either to his bank account or that of his co-accused. Thus, he was granted bail.
However, Kappan still hasn't stepped out, as his lawyers are waiting for courts to re-open post vacation so that the formalities pertaining to release may be carried out.
An 'Unprecedented' Urgency
In October this year, a special bench of the apex court sat especially on a Saturday to hear a plea challenging a High Court order discharging former DU professor GN Saibaba and his co-accused in a UAPA case. The High Court order was suspended and the release of the accused was stayed.
Experts have told The Quint that never before has an urgent Saturday hearing taken place to stay the acquittal (or discharge) of a person. “This is unprecedented,” former Chief Justice of Rajasthan High Court Pradeep Nandrajog pointed out.
Read more about the concerns pertaining to the apex court’s order suspending the High Court judgment in GN Saibaba’s case here.
Beyond Liberty: Other Rights in Peril
But it isn't just right to liberty that faced peril in 2022. When the Karnataka High Court upheld the state government's ban on Muslim girls' right to wear hijab in schools and colleges; right to education, freedom of religion and conscience, and right to privacy also suffered.
Crippled by a Hobson's choice between attire and education, several girls were compelled to drop out of school. It took months for the Supreme Court to actually hear their appeals, and even after that, the girls could not go back to school.
Why? Because although Justice Sudhanshu Dhulia repeatedly emphasised the primacy of right to choice, stating unambiguously that the "high court took a wrong path", the other judge on the division bench begged to differ. As per Justice Hemant Gupta, equality requires uniformity in all respects, and in a judgment spanning over 130 pages, he rejected all appeals.
That verdict being split, the matter now awaits hearing by a larger bench. Meanwhile, the education of many hijab-wearing girls in Karnataka stays halted.
Justice Delivered, But Still Fell Short?
And so, the courts of this country, exhibited many shades of grey this year. They also passed some meaningful orders, full of promise, that somehow still fell short.
For instance, in April, the Supreme Court stayed the demolition drive being carried out by the NDMC in Jahangirpuri, Delhi, but refused to pass orders with regard to similar razing of homes across the country.
In May, the apex court subsumed a lower court's order in the Gyanvapi mosque case, but merely ordered that a "senior and experienced" district judge may decide on the maintainability of the petition.
Also in May, they put the sedition law in abeyance but failed to hear the matter on merits or draft guidelines for the Centre to follow while drafting and amending such laws in the future.
And why does this matter so much?
Because even in the aftermath of the Jahangirpuri order, demolitions continued in other states, like Madhya Pradesh and Uttar Pradesh.
Because our courts are presently inundated with mandir-masjid disputes, despite the Places of Worship Act expressly barring the conversion of any place of worship into anything different from the religious character of the place as it was on 15 August 1947. Also, the violent history of the Ayodhya dispute suggests that it's important to keep the can of old, sectarian conflicts tightly sealed.
Because the freeze on the sedition law has only created concerns that in a continued bid to stifle dissent, other stringent laws (like the UAPA) may now be applied, even more liberally. Further, the government remains free to add harsher provisions to other laws – just as the UPA government did to the UAPA after repealing POTA.
SC's Unflinching Defence of Judicial Independence
And yet, Ramana, Lalit and Chandrachud, in their respective tenures, along with some of their fellow judges at the Supreme Court, should be credited for standing up to an increasingly querulous executive.
While the same cannot be said with such conviction about previous years, in 2022 the judiciary, helmed by this trio, kept a determined distance from the ruling dispensation. Especially, in recent months, when from the law minister to the vice president, government figures have grown increasingly unsparing with their 'take' on the functioning of our constitutional courts.
While hearing a case on delays in appointing judges, Supreme Court Justice Sanjay Kishan Kaul reminded the attorney general, that the collegium system is the "law of the land" which should be "followed to the T.” His observation flew in the face of the government's intensified criticism of the collegium system.
Additionally, CJI Chandrachud's defence of the top court's role as a court for all, which answers the call of conscience and the citizen's quest for liberty, was a strong response to the law minister's suggestion that the constitutional courts should not bother with PILs and bail pleas.
Most importantly, however, it reveals itself as a promise to all citizens seeking liberty, that justice is not subject to political whimsy.
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