A Tall Order for the New Chief Justice of India Sanjiv Khanna

The transition from Justice DY Chandrachud to Justice Sanjiv Khanna as the Chief Justice of India comes at a critical juncture for the Supreme Court.At a time when the apex court continues to face criticism for deference to the executive and abdication of judicial responsibility, Justice Khanna became India’s 51st Chief Justice, following Justice Chandrachud's retirement on 10 November.Exceptions aside, the court's endorsement of various legislative and executive actions in the recent past highlights a reputational crisis.Many of its rulings have been criticised for failing to uphold constitutional values, leading to concerns about its independence and commitment to speak truth to power and uphold the Constitution. The CJI Wants Us to Trust the Courts to be 'Guardians of Liberties.' How Can We?Elevated to the Supreme Court of India directly from the Delhi High Court on 18 January 2019, Justice Khanna joined the league of six other judges who have been promoted directly from their parent High Court since 1997. He began his legal career as an advocate in 1983, practising mainly in the Delhi High Court and the Supreme Court. He was appointed as an additional judge of the Delhi High Court in 2005 and became a permanent judge in 2006. Justice Khanna's work encompasses a wide range of legal areas, including civil, criminal, constitutional, and commercial law. As a judge of the Supreme Court, he had been involved in a number of landmark cases, including on issues related to fundamental rights, free and fair elections and questions of federalism. He served on several Constitution Benches, participating in five during the brief tenure of CJI UU Lalit and four during CJI Chandrachud's tenure. A look back at Justice Khanna's tenure as a judge of the Supreme Court reveals a mixed record, featuring both significant declarations and instances of deference and evasion. Justice Khanna wrote a powerful concurring opinion in the recent electoral bonds case (2024), in which a five-judge Constitution Bench of the court struck down the controversial scheme as “unconstitutional” and “arbitrary.”The court ruled that the scheme provided a “cloak of secrecy” to limit the voter’s right to know. While I described the court’s intervention in the case as fleeting and a form of damage control given its executive-minded behaviour in the past, Justice Khanna's nuanced analysis of the unconstitutionality of Electoral Bonds merits recognition. Ruling that “transparency and not secrecy is the cure and antidote”, Justice Khanna stated that the possibility of infringing the donor's right to privacy does not arise at all if the donation is made to a political party through a banking channel since “his identity is asymmetrically known to the person and the officers of the bank from where the Bond is purchased.” He further observed that while retribution, victimisation, and retaliation against donors are wrongful actions, they cannot justify a scheme that undermines the voters' collective right to information. Should We Be Worried About Executive-Judiciary Congeniality?In 2024, Justice Khanna was also part of a two-judge Bench that granted interim bail to Delhi Chief Minister Arvind Kejriwal in a case involving the Enforcement Directorate (ED). He emphasised that the "right to life and liberty is sacrosanct." In 2023, he authored the majority opinion in Shilpa Sailesh v Varun Sreenivasan, in which the Supreme Court ruled that it has the authority to directly grant divorce on the grounds of an irretrievable breakdown of marriage, under Article 142 of the Constitution. Emphasising that "this discretionary power is to be exercised to do 'complete justice' to the parties” under Article 142, he noted that the court must be convinced “that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified.” Despite these commendable contributions, Justice Khanna has been part of certain judgments that have faced public backlash and contributed to the Supreme Court's wider reputation of being an executive-minded court. Justice Khanna was part of the five-judge Constitution Bench that endorsed the Central Government's unilateral abrogation of Article 370 of the Indian Constitution in December 2023. In his concurring opinion, he stated that Article 370 was neither permanent nor an indication of Jammu and Kashmir’s sovereignty, asserting that it represented a feature of asymmetric federalism. Nevertheless, and paradoxically, he observed that "the abrogation of Article 370 does not negate the federal structure." Additionally, in a complete departure from constitutional law and convention, Justice Khanna endorsed the bifurcation of the erstwhile State of Jammu and Kashmir into the two Union Territories of Jammu and Kashmir and Ladakh. Worse still, Justice Khanna’s majority opinion in the RTI judgment (2019) exemplifies a form of judicial evasion. While he acknowledged that the Right to Information Act applies to information held by the Office of the Chief Justice of India, he sidestepped the central issue. The majority asserted that the right to information does not inherently undermine judicial independence but granted the court discretion to evaluate RTI requests on a "case-to-case basis." Chief Justice of India DY Chandrachud: His Career Shows He Can Defend DemocracyBy not establishing clear criteria for allowing RTI requests, the judgment introduced ambiguity, directing the Chief Public Information Officer (CPIO) to balance judges' "right to privacy" with "public interest" for any disclosure. In effect, the majority opinion leaves unresolved questions regarding whether collegium decision-making, personal asset disclosures, and the correspondence of the Chief Justice of India are universally subject to the RTI. Amid the political controversy surrounding the use of VVPATs (Voter Verifiable Paper Audit Trail), a Division Bench led by Justice Khanna, unanimously rejected the request for 100 percent VVPAT verification of votes cast on Electronic Voting Machines in Association for Democratic Reforms v. Election Commission of India (2024).In his leading opinion, he expressed his intention to "put on record all safeguards adopted by the Election Commission of India to ensure free and fair elections." He further noted that the current system "ensures quick, error-free, and mischief-free counting of votes." While there is no concrete evidence indicating that the current verification system is flawed, Opposition parties, including the Congress party, have asserted that “they will continue their political campaign for greater use of VVPAT to enhance public trust in the electoral process.” Justice Khanna’s mixed record of notable pronouncements, deference, and evasion mirrors the broader trajectory of the Supreme Court's performance in recent years. However, with him set to become the Chief Justice of India in just a few weeks, albeit for a limited six-month term, it will be intriguing to see how his tenure unfolds. This is especially important given the court's questionable record regarding issues such as personal liberty, bail, hate speech and violence against Muslims. Will Justice Khanna be able to change the court's perceived reputation as an executive-minded one?Will we see reforms in the appointment process of judges, especially in light of recent incidents where some of them have been perceived as aligning with political ideologies and cosying up to the ruling party at the Centre? Will he manage to reduce unexplained delays in listing significant constitutional law cases for hearings and resolutions? A tall order, indeed.These questions are crucial. With the CJI being the "first among equals" and the "Master of Roster", it remains to be seen whether Justice Khanna sets a positive example in restoring the reputation of the court, and the wider judiciary, as an unflinching defender of the Constitution and the rule of law. (Burhan Majid teaches legal and constitutional theory at the School of Law, Jamia Hamdard, New Delhi. He tweets at @burhanmajid. Views are personal.)Chief Justice UU Lalit: 74 Days of Maximum Efficiency, But Some Questions Linger

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A Tall Order for the New Chief Justice of India Sanjiv Khanna

Will Justice Khanna be able to change the Supreme Court's perceived reputation as an executive-minded one?

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