New Delhi: It has almost become a tradition now for a retiring Chief Justice of India to save some important judgments for the last few days of his tenure.
The three men who preceded Ranjan Gogoi in the CJI’s chair — Dipak Misra, J.S. Khehar and T.S. Thakur — set the precedent, delivering some landmark verdicts in the final month of their respective tenures.
And now, ahead of his retirement on 17 November, Justice Gogoi is set to deliver four major verdicts — on review petitions against the Supreme Court’s verdicts on Kerala’s Sabarimala Temple and the Rafale fighter jet deal, bringing the court and the CJI’s office under RTI, and the Ayodhya dispute.
Gogoi’s four cases
On 6 February, a bench comprising CJI Gogoi and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra had reserved its verdict on a batch of over 45 review petitions, filed against its landmark 2018 majority verdict allowing the entry of women of all ages in Kerala’s Sabarimala Temple.
Another bench led by CJI Gogoi had, in May, reserved its judgment on the review petitions filed against the court’s December 2018 judgment refusing criminal investigation into the Rafale fighter jet deal.
Then, there’s the case of whether the Supreme Court and the officer of the CJI can be regarded as ‘public authority’ under the RTI Act.
This case has been pending for over a decade, with Justice Ravindra Bhat of the Delhi High Court having ruled that the CJI’s office would be open to RTI scrutiny. Justice Bhat is now a Supreme Court judge, having taken over just last week. The Supreme Court registry appealed against this judgment in 2010, and a five-judge Constitution bench headed by CJI Gogoi reserved its judgment in the case in April 2019.
Of course, the biggest case on CJI Gogoi’s plate is the Ram Janmabhoomi-Babri Masjid Ayodhya dispute, in which arguments by the parties ended on 18 October. CJI Gogoi had himself remarked during one of the hearings that if the verdict is delivered in four weeks, the court “will achieve a miracle”.
Misra’s 35 judgments
Gogoi succeeded Dipak Misra as CJI on 2 October last year. In the month preceding that, Misra delivered over 35 judgments, several of which were landmarks.
Benches led by CJI Misra upheld Aadhaar, read down Section 377 that criminalised homosexuality, struck down Section 497 which criminalised adultery, set the stage for live streaming of cases of constitutional importance, and upheld the right to die with dignity.
A bench led by Misra also ruled that candidates contesting elections cannot be barred on the grounds of a charge sheet being filed against them.
Further, a majority judgment of a three-judge bench headed by Misra refused to refer the case concerning the arrest of five activists in relation to the January 2018 violence in Maharashtra’s Bhima-Koregaon to a Special Investigative Team.
Another three-judge bench refused to refer to a larger bench the Supreme Court’s 1994 judgment holding that a mosque was not integral to the practice of Islam, clearing the decks for the court to continue hearing the main case over the Ayodhya dispute.
A five-judge bench headed by Misra held that its 2006 judgment in the M. Nagaraj case concerning reservation in promotions need not be referred to a seven-judge bench. In the 2006 judgment, the apex court had identified three conditions for granting quota in promotions to employees from Scheduled Castes and Scheduled Tribes — identification of backwardness, compelling reasons, and inadequate representation. Misra’s five-judge bench clarified that there was no need to collect quantifiable data of backwardness of the employees to provide reservation in promotions.
The previous 3 CJIs
Justice Misra’s predecessor Justice J.S. Khehar, who retired on 27 August 2017, delivered only five judgments in his final month, but two of them were landmark verdicts. One of them declared the practice of instant triple talaq as unconstitutional — the verdict which formed the basis for the Modi government to bring in the Triple Talaq Act.
CJI Khehar’s other landmark verdict held that the right to privacy was a fundamental right under the Constitution of India.
Khehar’s predecessor, Justice T.S. Thakur, decided over 25 cases in a very short span of time, as the court was shut for a two-week winter vacation in his last month in the chair. He retired on 3 January 2017.
Among these were two seven-judge bench decisions. One of them held that unfettered re-promulgation of ordinances is not permissible by the Constitution. The court essentially took objection to promulgation of the same ordinance multiple times, without placing it before the legislature.
Another judgment broadened the purview and understanding of the phrase “corrupt practice” under Section 123 (3) of the Representation of the People Act, 1951. With this, it disallowed any reference to religion, race, caste, community or language, of the candidate, or of his rivals, or of the voters, to secure votes, or prejudice the electorate against a rival in an election.
However, Thakur’s predecessor Justice H.L. Dattu’s final month in the CJI’s chair was different. Dattu, who retired on 2 December 2015, delivered only two judgments. One of them allowed the Kerala government to ban online lotteries under the Lotteries (Regulation) Act, 1988, while the second, passed on his last working day, was by a Constitution bench deciding on the issue of remission of sentences of those involved in the assassination of former PM Rajiv Gandhi.
‘School child’ mentality
Supreme Court lawyer Shivam Singh called this recent trend of CJI’s saving judgments for their last month “school child mentality”.
“It’s the classic school child mentality — you have holiday homework, and you finish it just in the nick of time,” Singh said.
However, Singh also explained why this happens, pointing out that in most of these matters, there are more than two judges involved.
“After the judges hear arguments and reserve judgments, a lot of time is spent in deliberations. And in a lot of matters, especially those with grave consequences, there are intense deliberations involved,” Singh said.
“These matters proceed on a good faith basis; there are no timelines set. Only when the judges realise that a deadline is absolutely impending do they hurry it up.”
He added that it really spoils a judge’s legacy if a judgment is released “from part-heard”, i.e. when a matter is heard by a judge but not completed, and a new bench has to hear the case again.