Before he demits office on 17 November, Chief Justice of India Ranjan Gogoi is expected to deliver judgments in four important cases, which will have far-reaching consequences for India and how it is governed.
The decisions, especially those penned by the outgoing CJI Gogoi, will also be an important opportunity to restore to some measure the halo around the Supreme Court. Especially because the top court has somewhat lost its prestige and high moral ground as the preserver, and often the enforcer, of India’s constitutional integrity.
The crux of the four judgments by the CJI Gogoi-led benches will also show if the Supreme Court has decided to unshackle itself from the grips of the Narendra Modi government. More importantly, it will show whether the decisions are made on issues of constitutional principles rather than popular public perception.
Let’s look at the four cases and the way the Supreme Court has fared with regard to these.
Ram Janmabhoomi-Babri Masjid case
This is the most important and sensitive case, which saw CJI Gogoi conduct day-to-day hearings in order to come out with a verdict before his retirement.
In an administrative order, issued by the CJI since he is also the master of the roster, CJI Gogoi had ordered the constitution of a five-judge bench comprising Justices S.A. Bobde, S.A Nazeer, Ashok Bhushan, D.Y. Chandrachud and himself in January this year.
His order was surprising since a three-judge bench headed by his predecessor Dipak Misra had, in a 2:1 judgment, found no reason to refer the Ayodhya case to a Constitution bench, calling it simply a land dispute. It was only Justice S. Abdul Nazeer, who said the Supreme Court’s 1994 observation that a mosque was not integral to Islam should be referred to a larger bench and even framed some questions for it to consider.
While questions about the manner in which the Constitution bench rushed through the seven-decades-old matter still remain, the big elephant in the room is: will the bench side with the rule of law, the sentiments of the majority, or find common middle ground?
After last year’s fiasco over the controversial judgment on pleas for a court-monitored probe into the Narendra Modi government’s purchase of Rafale fighter jets from French firm Dassault Aviation, CJI Gogoi and his brother-judges heard review petitions against their judgment.
The big problem with the 14 December 2018 judgment, lawyers associated with the case claimed, was that a “lot of crucial information was suppressed” from the Supreme Court and the “impugned judgment was obtained on the basis of fraud played upon the court by the (Modi) government”.
More worryingly, the bench also went wrong in its understanding of how defence deals are scrutinised by India’s official auditor – the Comptroller and Auditor General (CAG). In the process, it gave those critical of the Supreme Court’s handling of the case a handle.
It will be interesting to see how CJI Gogoi’s bench effectively responds to the criticism: will it simply sweep everything under the carpet or, as every great institution must, accept its folly and undo the damage to its credibility and prestige? It also has the opportunity to settle, once and for all, the question of whether a government can take shelter behind ‘national security’ when questions arise about alleged irregularities of a deal shrouded in secrecy.
The Supreme Court’s judgment of 28 September 2018 allowing women of menstruating age to worship at Kerala’s Sabarimala temple led to a huge backlash from some Hindu groups.
As many as 65 petitions have sought review of the judgment, which are being heard by a Constitution bench led by CJI Gogoi.
The review petitions will settle whether courts should interfere in the religious customs and rules. They will also settle the larger issue of whether the courts have the gravitas to get their judgments, if they go against the perceived majority view, implemented without getting embroiled in the controversy as a party.
Finance Bill as Money Bill
The CJI Gogoi-led bench will also decide on whether the Finance Bill, better known as the Union Budget, can be passed as a Money Bill on the orders of the Lok Sabha Speaker. The Supreme Court will also get the opportunity to settle the larger issue of whether a decision of the Lok Sabha Speaker is subject to judicial review at all.
The fact that Finance Bill, 2017 was deemed a money bill in order to bypass the Rajya Sabha hasn’t escaped anybody’s attention.
The Modi government has relied on technicalities to buttress its stand while the petitioners have cited the issue of independence of judicial forum in support of their contentions.
The judgment is much-awaited since it will settle the issue of whether a government enjoying a brute majority can be allowed to steamroll the opposition and the established parliamentary norms to have its way.
Post-script: Apart from these four needle-moving cases, the CJI Gogoi-led bench will also decide what to do with the pending criminal contempt case filed by BJP MP Meenakshi Lekhi against former Congress president Rahul Gandhi. The Congress leader had incorrectly attributed the ‘Chowkidar Chor Hai’ remark, used for Modi, to the Supreme Court following its order allowing review petitions in the Rafale case.
The author is a senior journalist. Views are personal.
This article has been updated to reflect corrections.