Chief Justice N.V. Ramana belonged to a rare species of judges who did what they wanted to do without irritating the executive. He will perhaps be remembered more for his speeches outside the court than any judgments delivered in court.
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Beginning his term as the Chief Justice of India in controversy, the retiring Chief Justice of India, Justice N.V. Ramana successfully survived an attack on his credibility. An unprecedented letter was addressed to the then Chief Justice of India, Justice S.A. Bobde, by the Andhra Pradesh Chief Minister, Y.S. Jagan Mohan Reddy, in October 2020, which was put in the public domain. The substance of the allegation was that Justice Ramana, who was next in line for appointment as Chief Justice of India, was manipulating the High Court of Andhra Pradesh to influence the outcome of litigation relating to his children.
It is a different matter that the litigation ultimately ended in favour of his daughters and the inquiry against them was quashed in September last year. However, at the time when there was still uncertainty about whether he would be appointed as Chief Justice of India at all, the letter sent shockwaves through the legal community.
Any other person addressing a letter of this kind to the Chief Justice of India would be held in contempt of court. There was silence from the then Chief Justice of India for months, and it was only in March 2021 that the Supreme Court issued a short statement that Reddy’s complaint had been “dealt with under the In-House Procedure and…on due consideration…dismissed.” How exactly the complaint was dealt with behind closed doors is something that we do not know. However, Chief Justice Bobde went on to recommend Justice Ramana to be the next Chief Justice of India as the convention demanded, and the rest is a matter of history.
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Even then, it was clear that there was concurrence between the judiciary and the executive that led to the appointment of Justice Ramana as the 48th Chief Justice of India. At that point, it is worth noting that Reddy had the full support of the political regime running the Union Government, as a political ally. Hence, peace was made not only between institutions, but also with the Chief Minister of Andhra Pradesh.
Justice Ramana’s roots
Any casual visitor to the Andhra Pradesh high court could vouch for the fact the court had for a long time been dominated by two judges — Justice Jasti Chelameswar and Justice Ramana. Both of them belonged to different camps but had a common political friend, the politician and former Andhra Pradesh Chief Minister N. Chandrababu Naidu. When I was arguing the case of the suspended Yuvajana Shramika Rythu Congress Party legislator, R.K. Roja in the high court of the then-undivided Andhra Pradesh, this is something that became clear to me in the corridors of the court. I realised then that a Supreme Court judge never loses her umbilical cord with her parent state or high court. (In December 2015, Roja was suspended from the Andhra Assembly for a year by the then Assembly Speaker Kodela Siva Prasada Rao for obstructing the proceedings of the House, and for allegedly making derogatory remarks against the then Chief Minister Naidu and another female legislator.)
A charming feature of the retiring chief justice is his transparency, to the extent possible, in his public statements. He has never fought shy of admitting his political background. On an earlier occasion when I had met him, when he was still a judge of the Andhra Pradesh high court, at a seminar on women’s rights, he had a conversation with me in which he disclosed that he was a student activist and that during the Emergency, he had to remain underground.
I was hugely impressed by this one fact, which led me to conclude that political activism before becoming a judge was not such a bad thing after all. Strangely, it is worth recalling that the former Chief Justice, Justice Bobde, in his avatar as a lawyer, was known to represent such so-called activists with a sense of commitment, not shying away from the politics they represented. It seems obvious that activism in those days held a romance for the student community as also for the legal profession, which believed that its job was to defend the rule of law regardless of the politics of the person accused of a crime.
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I am not sure I can say this of today’s legal profession, given the politics of official repression which goes beyond the suppression of freedom of speech and expression. The politics of official repression even extends to the legal profession, with activists who bring cases to court being seen as the enemy that needs to be destroyed.
How does one evaluate an outgoing Chief Justice of India in such a political scenario? A few Chief Justices who came before him retired with a highly negative report card in public perception. They were perceived as having done the bidding of the executive, which sought to dominate every institution, including the courts. The primary marker of this domination by the executive of the courts is interference in the matter of appointment of judges.
Judicial appointments
It is now clear why the Supreme Court’s 2015 judgement striking down the National Judicial Appointments Commission was never reversed through legislation, even though the ruling party had the necessary majority to do so. Why bother to legislate, if you can get appointments of judges by consensus, even if that consensus means the judiciary does not have the last word in the matter of appointment of judges?
On an earlier occasion when I had met him, when he was still a judge of the Andhra Pradesh high court, at a seminar on women’s rights, he had a conversation with me in which he disclosed that he was a student activist and that during the Emergency, he was suspected of being a Maoist and had to remain underground.
Let us judge the outgoing Chief Justice by this criteria: were appointments made strictly in accordance with the binding recommendations of the Supreme Court collegium, or did the judiciary, through the collegium, succumb by not insisting on those who were not appointed despite being recommended, such as advocate Saurabh Kirpal. The most critical non-appointment might be that of Justice A.A. Kureshi, who was known to have taken an independent stand when he was in the Gujarat High Court in 2002 during the communal carnage. Public outrage about his non-appointment to the Supreme Court led to his being appointed for a brief period as Chief Justice of the Rajasthan High Court.
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There is now no doubt about the fact that the principle of seniority in the appointment of chief justices of high courts and judges to the Supreme Court has been given a burial. Several judges have been appointed directly from the high courts to the Supreme Court, though they were not Chief Justices initially, by the collegium headed by the then Chief Justice of India, and now Member of Parliament, Justice Ranjan Gogoi. The collegium headed by Chief Justice Gogoi recommended the appointment of Justice Sanjiv Khanna, who is in the line of succession to become the Chief Justice of India.
The Justice Ramana-led collegium recommended the appointment of 11 Supreme Court Judges, of whom four are likely to become the CJIs in future. Justice B.V. Nagarathna, who is slated to be the first woman Chief Justice of India will have a short tenure of just over a month while Justice J.B.Pardiwala, who is also in the line of succession to become the Chief Justice of India will have a long tenure of more than two years. The other two Judges, Justices Vikram Nath and P.S.Narasimha will each have tenures of around six months.
Justice Ramana restored a modicum of gender diversity on the court, but did not do as much as was desirable. However, we did not see the restoration of diversity in terms of representation of marginalized communities, Scheduled Tribes and Muslims in that the judges who were appointed primarily belong to the upper castes.
Important and progressive interim orders
Any outgoing Chief Justice will be judged for their legacy on the judgements that they deliver. In this respect, Justice Ramana, as the Chief Justice of India, has not authored many judgements involving issues of the interpretation of the Constitution of India or of foraging questions of law. He has, however, operated through a series of interim orders which give some cause for celebration.
The interim order by a bench led by him directing suspension of all cases of sedition was unique. The Union Government had admitted that it was seriously considering a revision of the sedition provision of the Indian Penal Code (‘IPC’). Sadly, however, several civil society activists and journalists who have been charged with sedition continue to face incarceration and trial due to being charged under the stringent Unlawful Activities (Prevention) Act (‘UAPA’) that severely restricts the grant of bail, making this a Pyrrhic victory for them.
In judicial appointments, we did not see the restoration of diversity in terms of representation of marginalized communities, in that the judges who were appointed primarily belong to the upper castes.
Justice Ramana was liberal in the matter of life and liberty, and hence even when it came to bail, he was able to distinguish between those accused persons who had indulged in impact crimes such as crimes against minorities, women and Scheduled Castes and Scheduled Tribes, and other crimes. He was quick to recognise that the order of bail granted by the Allahabad High Court to the son of a Union Minister in the Lakhimpur killing of farmers case was grossly beyond the four corners of the law. Setting the bail order aside and directing the surrender of the politician’s son, a bench led by him remanded the matter to the high court. The political background of the accused did not deter him from cancelling the bail granted.
Similarly, in an honour killing case, he was firm that the accused was not to be granted bail pending trial, having regard to the fact that the crime impacted not only the victim but society as a whole. A day prior to his retirement, he entertained petitions from the civil society challenging the remission of the 11 convicts in the Bilkis Bano case, and issued notice to the Gujarat government.
Non-listing of matters of public importance
The grievance against Justice Ramana at the Bar is the fact that he simply failed to list freshly-filed matters. The non-listing of matters in which notice was issued has been much talked about. Examples include the challenges to the abrogation of Article 370 of the Constitution (last listed on March 2, 2020), the legality of electoral bonds (last listed on March 26, 2021), and the Citizenship (Amendment) Act, 2019 (last listed on June 15, 2021). Petitions filed as far as one year back would not even be listed for issuing notices.
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The pleas challenging the Karnataka High Court verdict which dismissed the petitions seeking permission for petitioners to wear hijab inside the classroom were filed in March, but are yet to be heard. The non-listing denied the petitioners an opportunity to argue for some much-needed interim relief of allowing women who choose to wear the hijab to appear for an examination wearing the same. It has a direct impact on the right to education, which must be considered a fundamental right. But that is not the only case.
Justice Ramana, as the Chief Justice of India, has not authored many judgements involving issues of the interpretation of the Constitution of India or of foraging questions of law. He has, however, operated through a series of interim orders which give some cause for celebration.
When counsel would mention matters, Justice Ramana would only comment that he would look into the matter and list them, but the listing never happened. There were occasions when mysterious listings happened out of turn with no explanation, while many of us waited for our important cases to be listed.
Questions over use of Master of Roster authority
The Chief Justice of India exercises both administrative and judicial functions, with no apparent secretarial support either for the collegium or for the full court. Their position as Master of the Roster makes the Chief Justice of India vulnerable to allegations that benches are manipulated. Why would any institution throw itself open to such an attack? Earlier chief justices have been accused of posting politically sensitive matters before Justice Arun Mishra, who post-retirement became the chairman of the National Human Rights Commission.
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The outgoing Chief Justice continued the trend of posting such matters before benches headed by Justice A.M. Khanwilkar, who has been described as the judge who delivered multiple “emergency judgments”. One of them is a 2019 judgment which holds that material inadmissible as evidence can be used in a UAPA case to deny bail to an accused person. The second is the Zakia Jafri judgement from June which, for the first time in recorded history, calls for the prosecution of civil society and human rights defenders for nothing more than bringing cases to court to hold states accountable for communal carnage. The third from last month that upheld the validity of various provisions of the Prevention of Money Laundering Act, 2002 (‘PMLA’), has sounded the death knell of the right to life and liberty (unlike the previous two cases, this one was assigned to the Justice Khanwilkar-led bench by Chief Justice Ramana). The fourth, also from last month, left it to the discretion of executive authorities to take necessary actions against the petitioners for, in the view of the bench, filing false charges under Section 211 of the IPC, or for criminal conspiracy or any other charges, and directed one of the petitioners to pay exemplary costs of rupees five lakhs.
Granted that Justice Khanwilkar was a senior judge, but there is no explanation why any of these benches, particularly the one which heard the PMLA case, could not have been headed by one of the five senior-most judges of the Supreme Court, including the Chief Justice of India and the Chief Justice-designate.
We now know that even before the ink is dry on the PMLA judgement, its validity has been doubted by a judgement authored by Chief Justice Ramana himself earlier this week invalidating a provision of the Benami Transactions (Prohibition) Act, 1988.
When counsel would mention matters, Justice Ramana would only comment that he would look into the matter and list them, but the listing never happened.
Similarly, a bench headed by the Chief Justice-designate Justice U.U. Lalit heard on Thursday, an application from activist and journalist Teesta Setalvad for her bail after almost 50 days of her arrest following the Zakia Jafri judgment, because of the inordinate delay in hearing her plea by the Gujarat High Court.
Last few days
Perhaps Chief Justice Ramana left his most significant acts for the last few days of his career on the Bench. He read out portions of Justice R.V. Raveendran’s report that inquired into the Pegasus allegations in open court on Thursday, noting that as per the Technical Committee set up by the court last year (incidentally, by a bench headed by Justice Ramana) to probe the issue, the Union Government did not cooperate with the committee. As noted earlier, he headed a bench that issued notice in the case of remission to the Bilkis Bano atrocities convicts on Thursday. He also headed a bench on Thursday that issued notice to the Union Government in the review petitions against the Supreme Court’s PMLA judgment. Earlier this week, a bench headed by him referred questions of law in the Maharashtra anti-defection case to a five-judge Constitution bench of the Supreme Court.
He belonged to a rare species of judges who did what they wanted to do without irritating the executive.
It is difficult, if not impossible, to evaluate the functioning of the Supreme Court when it is pushed into a situation of evaluating individual judges, and I have often said that there are as many Supreme Courts as there are Chief Justices. Former judge of the Supreme Court of India, Justice L. Nageswara Rao, while delivering a speech for The Leaflet on the occasion of Independence Day, had said that he would have decided the PMLA case differently.
This is a sad story, for if anything defines an institution, it is the rules by which it is governed, and it is these rules which stand in jeopardy by ignoring precedent, authoring judgements which are per incuriam, and failing to evolve a morality of democracy which must be adopted as the morality of the court as well.
What will Chief Justice Ramana’s legacy be?
Finally, history will record that the outgoing chief Justice of India delivered more speeches than he wrote significant judgements. Delivering speeches in public must be welcomed, as it gives an insight into the mind of the judge and makes for communication between judges and the general public. I wish, however, that there was better communication between the outgoing Chief Justice of India and the legal profession, on matters which are legal, jurisprudential, and ideological. This did not happen.
The outgoing chief Justice of India delivered more speeches than he wrote judgements. … I wish, however, that there was better communication between the outgoing Chief Justice of India and the legal profession, on matters which are legal, jurisprudential, and ideological. This did not happen.
The speeches of the outgoing Chief Justice, addressed not to the Bar but to the people of the country, are welcome. But the question will remain: did the Chief Justice walk the talk? His speeches indicate his concern for at least three public issues— one, the creation of judicial infrastructure to deal with delays in the judiciary; two, the threats to the freedom of the press; and three, greater representation of women in the judiciary.
On the first issue, he leaves the court as he came in, with no substantial judicial infrastructure in place to deal with the issues he outlined in his speeches. On other issues, his critics have pointed out that he has no judgements to his credit to substantiate his concerns judicially.
How does one then look into the looking glass to hazard a guess of his future plans? We have seen judges taking post-retirement benefits, we have seen judges becoming governors, we have seen judges being nominated to the Rajya Sabha, and we have known of judges who aspire to be president or vice president.
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Does the outgoing chief justice exhibit any of these aspirations? In my opinion, no. Given his history as a student, an activist, a journalist, a lawyer, a public prosecutor, a High Court judge and finally as a Supreme Court judge, I would expect to see him join some form of active politics (he did, after all, admit in a public address last month that he was once keen on joining active politics), although let me provide the disclaimer that there is no evidence to indicate the same. As my efforts to meet the outgoing Chief Justice to interview him on some of these issues did not meet with any success, I am left to guesswork.
In the final analysis, it is for history to judge him.
Indira Jaising is a noted human rights lawyer and a senior advocate at the Supreme Court of India. She is also a co-founder of The Leaflet.
