Once I was a baby, I cherished studying “Select Your Personal Journey” storybooks. In these tales, you – the reader – had been the protagonist. Each few pages, you’d be requested to select, which might lead you to completely different situations, and – finally – to completely different endings. However the beauty of Select Your Personal Journey tales was that in the event you didn’t prefer it, you possibly can simply return, make a unique resolution, and alter the ending. It was that easy.

If there may be one widespread thread that runs via the six-month tenure of Chief Justice B.R. Gavai – which ends in the present day – it’s that he handled his Chief Justiceship as a Select Your Personal Journey story. If there was some long-standing precedent that he didn’t like, he used his powers because the grasp of the roster to overturn it. If one other bench of the Court docket issued a ruling that he didn’t like, he arrange his personal bench and overruled it. It didn’t matter that in doing so established norms and conventions had been shredded, completely new jurisdictions had been invented, and the remainder of the Court docket was diminished. What mattered was the result, which – simply by the way – typically occurred to be aligned with the result that the central government needed.

Allow us to be clear. Each Chief Justice that this weblog has analysed has manipulated the roster to nudge the Court docket in the direction of their most popular outcomes. CJI Misra did it. CJI Gogoi did it. CJI Bobde did it. CJI Ramana did it. CJI Lalit did it. CJI Chandrachud did it. CJI Khanna did it. A few of these manipulations had been egregious, however whether or not out of a way of self-restraint, or comity with their fellow judges, or some lingering concern for institutional integrity, these judges didn’t cross a sure line. In CJI Gavai’s tenure, the road ceased to exist. If his predecessors had been – because the outdated saying goes – nonetheless solely “first amongst equals,” regardless of every thing, then he solid off the final remaining shackles of due course of, and have become a Chief in his Chiefdom.

As with earlier posts, this weblog will think about the tenure of CJI Gavai from three lenses: as the pinnacle of the collegium (A), because the grasp of the roster, accountable for the course of the Court docket (B), and as a decide of a constitutional courtroom (C).*

A. Head of the Collegium

There are three main criticisms levelled on the collegium system of judicial appointments: first, that it’s nepotistic; secondly, that it’s non-transparent; and thirdly, that its opacity permits the central government to train an off-the-cuff, back-channel affect over appointments. Earlier Chief Justices’ tenures would rank poorly on one, or maybe two, of those indices. Chief Justice Gavai’s tenure hit all-time low on all three.

On nepotism: throughout his tenure, the Collegium (that he was the formal head of) appointed his personal nephew a decide of the Bombay Excessive Court docket. Such a direct battle of curiosity has not been seen in current reminiscence. After all, it was informally leaked that he didn’t participate within the particular assembly during which his nephew’s identify was put ahead. We have no idea this, as a result of the information of the conferences stay opaque. However both method, it doesn’t matter: whether or not or not he was personally current on the assembly doesn’t change the truth that he was the pinnacle of the Collegium on the time, and doesn’t cleanse the battle of curiosity.

On non-transparency: as we’ve beforehand famous, CJI Chandrachud’s tenure noticed some fundamental data being offered concerning the deliberations of the collegium in choosing judicial candidates. This was not very a lot – and in some methods, it was even counterproductive in establishing laborious limits to the diploma of transparency that will come from the collegium – nevertheless it was one thing. Beneath CJI Khanna’s tenure, this one thing was additionally rolled again, and below CJI Gavai it vanished utterly, taking the collegium again to the cabal-of-high-priests-meeting-in-a-secret-conclave that it has lengthy been accused of being (a late disclosure of the non-public particulars of appointees – corresponding to their caste and gender – does nothing to treatment this fundamental defect and – as soon as once more – supplies an look of transparency the place there may be none) .

The nadir of this opacity was reached within the controversy across the elevation of Justice Vipul Pancholi to the Supreme Court docket. This elevation was controversial for a lot of causes involving supersession of a number of different Excessive Court docket judges and the bypassing of senior, certified ladies judges (in a second of supreme irony, in his farewell speech, CJI Gavai lamented having been “unable” to nominate any ladies judges to the Supreme Court docket – whereas himself being accountable for superceding them!)

Now, within the absence of any data, it’s not possible to know what – if any – causes the Collegium had for this appointment, identical to it’s not possible to know what causes the Collegium has for any appointment. However for our functions, it’s essential to notice that one of many judges (the truth is, the one lady decide on the Collegium) – Nagarathna J. – dissented from the Collegium’s resolution, and even her dissent word has been saved a secret. In an interview printed in the present day, the CJI acknowledged that if Nagarathna J.’s dissent had “benefit,” it might have been accepted by the opposite judges within the collegium (everyone knows that’s how issues work – in any case, if Galileo’s views had benefit, absolutely the Catholic Church would have accepted them!). However by this logic, we would as nicely cease publishing dissenting judgments, as a result of if that they had “benefit,” they might not be dissents in any respect. Such flimsy, post-facto justifications needn’t detain us additional, had been it not for the scary future that they portend: a Supreme Court docket that’s so centralised below the Workplace of the Chief Justice, that even expressions of dissent from inside the establishment are saved non-public: what Justice Robert Jackson as soon as referred to as “the unanimity of the graveyard.”

In sum, thus, not solely do we’ve no entry to the Collegium’s causes for elevating somebody as a decide of the Supreme Court docket, as a result of these causes are not recorded, we don’t even have entry to a decide’s dissent word that’s formally on the report. Certainly, CJI Gavai’s resolution to maintain Nagarathna J.’s dissent word non-public was a harbinger of a theme that will be repeated all through his tenure: a repeated diminishment of the collegial nature of the Supreme Court docket, and of different judges of the Court docket, on the expense of the omnipotent Workplace of the Chief Justice.

On government affect: That the manager has a job to play in judicial appointments is a proposition accepted in most constitutional democracies. What this position must be is a matter of debate. However what is just not a matter of debate is that this position needs to be clear and clearly outlined by legislation, and never one thing casual and shadowy. That is true whether or not a rustic has its government actually appointing judges (as in the USA), or the place the manager is one voice in a multi-member appointment fee (as in the UK), or the place the manager has a downstream position in choosing from a shortlist (as in South Africa). The rationale for that is apparent: as there may be a lot constitutional litigation towards the manager, it’s crucial to know exactly what position it has had in choosing the judges who will probably be adjudicating these instances.

The non-transparency and opacity of the Collegium is corrosive to this, and the extra non-transparent the Collegium will get, the extra corrosive issues develop into. No person is aware of the precise position the manager performs, however everybody is aware of that via the pocket veto and different types of stress, it does play a job. And within the absence of particular data, as is inevitable, data is changed by the sort of hypothesis that’s significantly poisonous to sustaining public belief in institutional integrity.

None of that is new so far as the Collegium goes, however right here once more CJI Gavai broke new floor, and never in a great way. This concerned the switch of the Excessive Court docket decide, Atul Sreedharan J. It was alleged that Sreedharan J. was repeatedly shunted between Excessive Courts as a result of he was a agency and pro-liberty decide whose orders had been embarrassing the manager. We can’t touch upon this as a result of – as soon as once more – there is no such thing as a transparency with respect to when, the place, and for what cause the Collegium orders the switch of a Excessive Court docket decide. What we are able to touch upon, nevertheless, is that when Sreedharan J.’s switch order to the Chhattisgarh Excessive Court docket (the place he would have been a member of the Excessive Court docket Collegium) was countermanded, and as an alternative, he was transferred to the Allahabad Excessive Court docket (the place he wouldn’t be), the Collegium Decision – for the primary time – explicitly acknowledged that this was being accomplished on the advice of the central government.

But when the entire objective of the Supreme Court docket taking up the ability of appointment and switch of judges was to insulate these processes from the manager, then what position does an government advice must play in a switch resolution? Extra importantly, what was the advice, and why was it made? But once more, we have no idea, as a result of nothing is clear; what we do know now, nevertheless, is that it’s on the report {that a} decide’s switch was influenced by the manager (to the detriment of that decide’s seniority).

One doesn’t have to suppose too far to see the affect it will have on different Excessive Court docket judges: earlier, they had been topic to switch by an unreasoned collegium order. Now, they’re topic to switch by an unreasoned collegium order on the advice of the manager. It can’t be understated how deeply this undermines judicial independence.

B. Grasp of the Roster and the Course of the Court docket

For the final eight years, this weblog has critically examined the extraordinary administrative powers loved by the Chief Justice because the “Grasp of the Roster”: this contains the ability to assign instances to any decide or mixture of judges (the CJI has thirty-three to select from), the ability to determine which instances are to be heard, and the ability to go away instances hanging in chilly storage. These powers – and the best way that they’ve been wielded by every Chief Justice – implies that it’s, largely, the CJI who decides not simply the instances he locations earlier than himself, but additionally, in a really important method, the course of the Court docket below his tenure.

I. The Course of the Court docket

What had been a few of the important options of the course of the Court docket below CJI Gavai? To begin with, the Court docket continued its time-honoured custom of judicial evasion: that’s, its refusal to listen to constitutional instances towards the manager, and its upkeep thereby of a establishment that advantages the manager. Throughout CJI Gavai’s tenure, long-pending constitutional challenges continued to go unheard, whereas – however – contemporary instances pertaining to a really particular concern (the appointment of the district judiciary) had been swiftly taken on board, heard, and determined.

Nevertheless, probably the most egregious case of judicial evasion throughout CJI Gavai’s tenure was how the Supreme Court docket handled the problem to the Election Fee’s resolution to hold out a Particular Intensive Revision (S.I.R.) of the electoral rolls upfront of Bihar state elections. The S.I.R. was challenged quickly after it was introduced, in early July. It raised basic constitutional points that went to the guts of the electoral and democratic course of, such because the competence and powers of the Election Fee to conduct such an train within the method that it was doing, the constitutionality of inserting the burden of proof on people to display eligibility via a listing of paperwork, the potential of mass disenfranchisement, and so forth. It was assigned by CJI Gavai to a bench presided over by his next-senior-most colleague.

It’s now late November. Greater than 4 months have handed, and the Supreme Court docket has not held a single substantive listening to on the constitutional problem. What it has accomplished is maintain a number of, hours-long hearings on points corresponding to whether or not “Aadhaar” needs to be added to the record of paperwork or not, points which can be all clearly downstream from the constitutional problem itself. Within the meantime, the Bihar elections got here and went, and the S.I.R. was subsequently introduced in a number of different states.

To those that have been following and been concerned with the Supreme Court docket over the past decade, this can be a drearily acquainted story: constitutional challenges languish till they develop into infructuous, till what they had been difficult has develop into a fait accompli. Within the meantime, the Court docket holds a number of – and chaotic – hearings on points which can be completely disconnected from the substance of the problem itself. The S.I.R. case is a very egregious instance, as this can be a problem concerning the electoral course of – fairly actually, the very floor guidelines that allow democracy to perform. For a constitutional courtroom, this could take first and pressing precedence; nevertheless, on repeated events, on listed dates, the Court docket advised petitioners that it was “listening to different issues”, and this case must wait, or be heard for a couple of minutes (thus precluding any substantive engagement). No constitutional courtroom definitely worth the identify would deal with democratic disputes in such a callous method.

The Court docket’s refusal to listen to the case – and as an alternative, to rule via a sequence of one-line interim orders – raises one other concern. Constitutional adjudication isn’t just about settling the rights and obligations of events, and defending people from State energy: additionally it is about judicial accountability. When Courts write judgments, they need to essentially give authorized causes, and in that course of, clarify themselves to the general public: how, why, and in what method have they reached their resolution? This opens up Courts to public scrutiny and critique, and stays the one actual node of accountability. When, due to this fact, in a case just like the S.I.R., the Court docket takes extremely consequential actions over a interval of months, however there is no such thing as a reasoned judgment (as every thing is occurring via interim orders), it additionally insulates itself from the accountability that comes with publicly and brazenly deciding the instances dropped at it. That is of a chunk with the opacity and non-transparency we mentioned within the earlier part, and each pertain to how the Court docket has, in impact, liberated itself from accountability. Judicial evasion is without doubt one of the most potent weapons via which it does so.

The opposite important occasion which mirrored on the course of the Court docket below CJI Gavai’s tenure pertained to the “Vantara case.” In a hasty and irregular course of, a bench of the Supreme Court docket – performing on two half-baked public curiosity petitions – arrange a Particular Investigation Crew to analyze whether or not Vantara was concerned in any illegality when it got here to trafficking of wildlife and different associated legal guidelines; equally swiftly (in below three weeks, to be exact), the SIT filed a report clearing Vantara of all costs. At this level, it have to be famous that there appears to be completely no precept or customary that determines when, and on what foundation, the Supreme Court docket decides to arrange these “SITs,” with all of the far-reaching penalties that that entails; it apepars to rely completely on the uncanalised discretion of the judges concerned.

In any occasion, the Court docket then handed a rare judgment, during which probably the most extraordinary half was two instructions.

The primary was an order that “no additional criticism or proceedings based mostly upon such similar set of allegations shall be entertained earlier than any judicial statutory or administrative discussion board.” In a single stroke, the Court docket erased your entire legal and civil legislation equipment that exists within the nation, with respect to Vantara, on the energy of an SIT that it itself had constituted, and whose report has by no means been made public (in fact, this isn’t the primary time the Supreme Court docket has accomplished this, and it stays now – because it remained then – unjustifiable).

The second was a course that “we might go away it open to the respondent – Vantara to pursue its cures in accordance with legislation for the deletion of any offending publication or for any motion towards these accountable for the misinformation or for actions for defamation…”

I’ve beforehand referred to this because the Supreme Court docket’s “Idi Amin jurisprudence.” One doesn’t have to be a clairvoyant to learn between the strains and perceive this for what it’s: a sign that it’s open season on critics and dissidents. One doesn’t have to be a clairvoyant as a result of, once more, one has seen this earlier than: in instances involving Teesta Setalvad and Himanshu Kumar, the place – completely unconnected to the precise case earlier than it – the Court docket makes these innocuous strategies to prosecute or in any other case use the legislation towards particular individuals. The continuation of this judicial vindictiveness below the tenure of CJI Gavai is disturbing.

As an apart, it’s attention-grabbing to notice that from begin to end, this case took forty-five days earlier than it was closed, and all of that with out the Court docket ever formally issuing discover on the petition.

What of different areas of constitutional legislation? Issues largely stayed the identical below CJI Gavai’s tenure as that they had below his predecessors, which isn’t to say that issues had been good. Private liberty continued to undergo. Political prisoners nonetheless languished in jail for years with out trial, whilst interminable hearings continued (and proceed) earlier than the Supreme Court docket. Challenges to administrative detention – corresponding to that of the political chief Sonam Wangchuk – had been saved pending with lengthy dates till they turned successfully infructuous. The Court docket continued to exhibit a peevish hostility in the direction of the liberty of speech, berating one individual, establishing an SIT (that SIT once more!) to analyze the Fb posts of one other, and sanctioning continued police harassment by refusing to grant anticipatory bail to a 3rd. The language of the Court docket continued to coarsen and cheapen in the direction of a few of the most weak members of society, corresponding to refugees and migrants. Certainly, whereas a dislike of refugees and migrants – and of the worldwide authorized framework that seeks to guard them from persecution – has lengthy been a part of the Supreme Court docket’s judgments, jibes and taunts from the bench in the direction of the UN Excessive Fee in the future, and in the direction of petitioners protesting the bodily dropping of refugees into the ocean for deportation one other day, marked a brand new low within the high quality of the dialog that takes place inside the halls of the nation’s highest constitutional courtroom. Whereas, naturally, one can’t maintain the CJI straight accountable for particular oral remarks made by different judges, all in all, the Court docket’s drift from an establishment that engages critically and dispassionately with legislation and authorized reasoning, to a discussion board the place our society’s nastiest and most parochial sentiments now get a public airing from the bench, continued.

II. The Grasp of the Roster

It was in his actions because the Grasp of the Roster, nevertheless, that we noticed CJI Gavai because the protagonist of his personal “Select Your Personal Journey Story.” Essentially the most outstanding instance of this, in fact, was the way during which he took up a Presidential Reference filed within the aftermath of the Court docket’s ruling (State of Tamil Nadu) that Governors and Presidents had been sure by timelines to behave on state legislative meeting payments.

In establishing a bench submit haste, which then went on to render an opinion successfully overruling State of Tamil Nadu, CJI Gavai and his bench did one thing really extraordinary: as I’ve famous at some size on this submit, they created a brand new, intra-Court docket appellate jurisdiction which just one celebration can utilise: the central government. After this Presidential Reference, each time the central government is sad with a case that they’ve misplaced earlier than the Supreme Court docket, they’ll merely file a Presidential Reference (a privilege which no different litigant within the nation has), and get a second chew of the cherry earlier than a five-judge bench, the place the earlier resolution is completely ignored and the case thought of afresh.

Sure, we’ve had Chief Justices beforehand who’ve administered what I’ve known as an “government courtroom”: however that is the primary time we’ve had a Chief Justice who has formally created a privilege reserved just for the manager, and entrenched it inside the Structure. Maybe we now want a time period that goes past the “government courtroom” (see the Conclusion for a suggestion).

Aside from the Presidential Reference case, CJI Gavai repeatedly manipulated the roster in different instances to overturn precedent that he didn’t like. A two-judge bench of the Supreme Court docket had handed a judgment holding that post-facto environmental clearances to large firms concerned in extractive actions (corresponding to mining and many others) had been unlawful. Towards this judgment, a assessment petition was filed. A assessment is a rare treatment requires three issues: one – that or not it’s heard by the identical bench that handed the unique judgment; two – that or not it’s determined in circulation in chambers except there’s a particular, acknowledged cause to listen to it in open courtroom; and three – {that a} assessment can succeed provided that the unique judgment has an error on the face of the report (and never just because one other decide believes the legislation needs to be determined in another way).

After passing the environmental clearances judgment, one of many judges – Oka J. – retired. CJI Gavai then arrange a assessment bench that had three judges as an alternative of two: the opposite decide on the unique bench (Bhuyan J), the CJI himself, and a 3rd decide (Chandran J). With none circulation or cause why the case was being reviewed in open Court docket, this three decide bench now handed a judgment “recalling” the unique judgment (for sure, Bhuyan J dissented).

And for sure, the “recall” judgment made no effort to display how Oka J.’s authentic judgment was so faulty that it needed to be “recalled.” The implications, as many have famous, are going to be devastating for the atmosphere; however the penalties are additionally devastating for the Supreme Court docket as an establishment, as a result of clearly, even closing judgments of the Court docket will be in a short time overturned if the Chief Justice doesn’t like them.

These examples would have been dangerous sufficient on their very own, however there are a litany of such instances: from the Court docket’s Structure Bench resolution on the district judiciary, to the infamous matter involving stray canines, to an unreasoned keep upon one other decide’s order that one way or the other got here to him in “assessment” in open courtroom after a break up bench (see above), CJI Gavai’s tenure was marked by the manipulation of the grasp of the roster’s powers to not simply assign and record instances, however to actively intervene with determined (or pending) instances (for a extra detailed evaluation, see Indira Jaising’s piece on this). The upshot of this – aside from the gutting of the doctrine of precedent and the rule of legislation – is, in fact, a diminished establishment. It was dangerous sufficient that as “first amongst equals,” the Chief Justice had huge administrative powers of project and itemizing, which might affect outcomes. This affect, nevertheless, was oblique; below CJI Gavai’s tenure, this turned direct interference, thus successfully rendering the Workplace of the Chief Justice excess of “first amongst equals”, and in each method, a superior amongst subordinates.

Or, a chief in his chiefdom.

C. Constitutional Choose

What of CJI Gavai’s time as a constitutional decide throughout this six-month tenure? We do have some judgments involving the district judiciary (as famous above) and tribunals, however no less than so far as substantive constitutional legislation goes, there may be solely the Presidential Reference (which was authored per curiam). On substantive points, the Presidential Reference “opinion” has been critiqued elsewhere on this weblog; right here, along with what I’ve famous above, I’ll add one additional level, which is in keeping with the theme of this submit, and of CJI Gavai’s tenure. The impact of the Presidential Reference Opinion – aside from gutting Indian federalism – is to position elected state governments not solely on the mercy of Governors and Presidents, however – even worse – on the mercy of the Supreme Court docket.

At its coronary heart, the Presidential Reference Opinion is an enlargement of unprincipled and discretionary judicial energy, as a result of what it does is to present to itself the ultimate name on whether or not there was “sufficient” delay on a part of Governors and Presidents to warrant judicial intervention – however, not like the State of Tamil Nadu – with completely no requirements to examine the arbitrariness of the Court docket in making that dedication. Henceforth, due to this fact, for each invoice {that a} Governor pocket-vetoes, states should come to the Supreme Court docket and plead for intervention in order that they’ll go about their enterprise of laws. And we’ve seen the place this street goes earlier than, with the tenth Schedule and the anti-defection instances: the Court docket turns right into a political actor and a power-broker between the centre and the states, tipping the scales this manner and that. And, identical to within the tenth Schedule instances, as a result of there is no such thing as a legislation and there are not any requirements, the Court docket is not going to clarify itself even because it makes vastly consequential selections. Identical to in 2022, the Maharashtra authorities flipped with two one-line interim orders of the Court docket, states will probably be knowledgeable via one-line diktats whether or not they can legislate or not.

It might be remiss to not conclude with a quick coda of the hypocrisy concerned within the Presidential Reference Opinion. Neglect, for a second, the hypocrisy of the Indian Supreme Court docket invoking the “separation of powers” in 2025, given its sweeping position in Indian public life. Neglect the hypocrisy of the Court docket immediately turning into chary of invoking Article 142 of the Structure on this case. Neglect the sudden, odd constancy to textual content when every of the judges on the bench owe their very own place to the Collegium system, which was invented out of entire material. The very fact is that the identical CJI Gavai who headed this bench noticed no drawback with imposing a three-month deadline on an Meeting Speaker to determine on disqualification petitions. Walt Whitman might include contradictions. A Chief Justice doesn’t have that luxurious. Or so one would have thought.

D. Conclusion

Via his tenure, the Chief Justice preferred to discuss his achievements. He praised himself for having stopped “bulldozer raj” and restored the rule of legislation, even because the bulldozers continued to demolish properties. And on his farewell day, he praised himself for not having used a single international precedent within the Presidential Reference Opinion. He referred to as it “swadeshi jurisprudence.”

However what precisely, one would possibly ask, is “swadeshi” a couple of judgment written in English, relying totally on the English widespread legislation of precedent, contemplating the powers of the English-invented establishment of the “Governor,” and propounding a doctrine of government deference that was initially propounded by the German jurist, Carl Schmitt?

Certainly, the best exponent of that very same English language, one Shakespeare, famously requested us: what’s in a reputation? What we name the manager courtroom, by another identify, would decide the identical (or not decide, whether it is performing judicial evasion). If CJI Gavai’s parting achievement is to convey collectively all these various components of the manager courtroom – judicial evasion, non-transparent appointments, manipulation of the roster, callousness in the direction of private liberty, “Idi Amin rulings,” coarse judicial language, and government deference earlier than all else (together with federalism) – inside one label, that of swadeshi jurisprudence, then maybe we needs to be grateful to him for that. In spite of everything, brevity is the soul of wit, Shakespeare additionally stated.

We sit up for the additional evolution of this swadeshi jurisprudence.

[Gautam Bhatia is a noted jurist. Courtesy: Constitutional Law and Philosophy, a well-known academic blog that focuses on constitutional theory, constitutional interpretation, political philosophy and public law.]