In the middle of September, I happened to read an article on the new Chief Justice of India, N V Ramana, on an online news portal, which at first I thought was satire. Unfortunately, as I read it again, I realised the author was deadly serious in his unstinting praise of CJI Ramana.
The article argues that the CJI has restored “judicial spirit and spark” without apparently getting into a “gratuitous confrontation” with the executive. The entire basis for the article seems to be a speech delivered by the CJI. It is a fine speech no doubt, covering ideas of the rule of law, quoting Rabindranath Tagore and Gurajada Appa Rao, among others, but entirely irrelevant to assessing CJI Ramana’s term so far.
'Not as Bad as His Predecessors'
The author of the article is not the only one who has drawn an inference based on what CJI Ramana has said and not what he has done. The sentiment is highest among those who happen to come across CJI Ramana’s soaring speeches in the newspapers but fail to follow closely the court’s actual work on a day-to-day basis. A lesser form of the sentiment is based on the belief that at least he’s not as bad as his immediate predecessors.
The purpose of this piece is to therefore contrast the complete mismatch between rhetoric and reality.
For all the wonderful rhetoric about the importance of institutions and the Constitution, CJI Ramana’s term, very much like his immediate predecessors’, has been marked by abject surrender to the whims of the Union Government. One sees this most obviously when it comes to the refusal to hear and decide any case concerning a key government policy and in the appointment of judges to the High Courts and the Supreme Court.
There’s no shortage of key constitutional questions that are crying out for the Supreme Court’s attention at the moment.
The abrogation of Article 370, the challenge to the Citizenship (Amendment) Act, 2019, the controversial farm laws to pick three — all raise fundamental questions about the Constitution that have so far received little judicial attention from the Supreme Court.
The farm laws were stayed earlier this year in a disingenuous order that had less to do with law and more with political compulsions. As the Master of the Roster, CJI Ramana has to ensure that the court's docket reflects the importance of the questions placed before it. With the Supreme Court at near-full capacity, there is even less excuse for not constituting the appropriate Benches in these matters. Yet, there seems to be little or no chance of these vital cases being heard before the end of the year.
Collegium Has Turned Into a ‘Search and Selection’ Committee
Even on matters that he has heard, CJI Ramana has seemed unable to pass effective orders. Whether it is on the Union Government’s brazen disrespect of court orders on tribunal appointments or in the Pegasus snooping case, the approach seems to be to see if the Union government can do something to make the problem go away rather than assert judicial oversight over the issue. It is telling that more than weeks have passed since hearings took place in the Pegasus case and an interim order, which was promised in two-three days”, is nowhere to be seen.
As far as appointments of judges are concerned, CJI Ramana has said, “The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the rule of law would become illusory.” The reality, however, is that CJI Ramana’s term has been marked by a quiet acceptance of the Union Government’s de facto power of veto over nominations.
The refusal to even nominate Justice Akil Kureshi, knowing fully well the Union Government’s dislike of the particular judge for his judicial verdicts, is testament to how meek the collegium has become.
The Memorandum of Procedure, which is supposed to guide appointments to the High Courts and the Supreme Court, has been given a go-by the Union Government, without a modicum of protest by the CJI.
The collegium under CJI Ramana has turned itself into a search and selection committee, implicitly accepting that the final say in the appointment of judges will be that of the Union Government.
Women's Representation Has Improved Marginally
While CJI Ramana has said women’s representation in the judiciary is a matter of right, not charity, the record of the Supreme Court collegium headed by him suggests otherwise. While it is true that the Supreme Court has more women judges than ever before, with one of them (Justice BV Nagarathna) in line to become CJI, the picture is very different at the immediate next level. Of the 25 Chief Justices of the High Courts, only one is a woman — Justice Meenakshi Rai, the Acting Chief Justice of Sikkim High Court. She is, in fact, in line to be replaced as Chief Justice if the collegium’s nomination of Justice Biswanath Somadder to the Sikkim High Court is approved by the Union Government, leaving the judiciary with a situation where not one High Court Chief Justice will be a woman.
What this amounts to, therefore, is a shuffling of the cards that presents a surface-level change but is passed off as a revolutionary step. Even among the nominations to the High Courts made by the Supreme Court collegium headed by CJI Ramana, only 18% are women. While this figure is better than the current representation of women in the High Courts (~12%), it is not a dramatic improvement on the percentage of women (~16%) recommended for appointment by the collegium to High Courts in the last four years, for which data is available.
Perception Trumps Facts
With such a thin record of action, it was somewhat surprising that CJI Ramana chose to take up the Lakhimpur Kheri killings through a letter petition PIL case. The Uttar Pradesh government has already set up a one-member judicial commission to probe the killings, a PIL has also been filed in the Allahabad High Court seeking a CBI enquiry into the killings. When these institutions and mechanisms have yet to begin their task, one wonders what the SC hopes to achieve through by hearing the case at this stage.
For all the noble pronouncements and rhetoric, the fact remains that CJI Ramana is yet to have any tangible, positive impact on the judiciary.
He has made news much more for what he has said than what he has done. This is perhaps an indictment of the popular discourse about the judiciary itself, but any praise of CJI Ramana at this point is based less on fact and more on perception.
(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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