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Losing govt’s grip to winning people’s trust – a lot is riding on CJI Gogoi’s last 4 cases

The four cases hold the power to establish whether Supreme Court decisions are made on constitutional principles or as per popular public perception.

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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.

Also read: This is why Modi, Amit Shah and BJP aren’t losing sleep over Ayodhya verdict

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?

Also read: Supreme Court is going back on promise of transparency, building case for Modi govt’s NJAC

Rafale case

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.

Also read: Aadhaar, air pollution, Ayodhya — next CJI SA Bobde has been part of landmark cases

Sabarimala case

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.

Also read: Ranjan Gogoi led the revolution in judiciary last year, as CJI he is now killing it

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.

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  1. Who is Maneessh Chibbar? And how has he presumed the authority to give his own judgments over the verdict of CJI? This article is based on assumptions that integrity level of Maneesh is higher that CJI, and Maneesh has better understanding of all these issues even he has not attended court debate nor chaired the bench nor has any accountability. Dont Waste your time in reading such useless articles..

  2. Non of these cases are really earth shattering and have more to do with Administration than Justice ….. Manneesh Chhibber should have concentrated more on the bigger issues confronting the economy than wasti g time on these matters ….. Ram Janam Bhoomi is a matter of faith & so is Sabrimala, the courts ought not to get into these issues. The Government has to run and that’s why it is voted to power finance bill or money bill is just a technicality and the entire nation cannot be hostage to technicalities …. Auction and not policy is the best form of licensing that’s now a well established fact … CJI Gogoi would do well to put a final lid on these 5 issues once for all and allow the next CJI to address himself to the real business of providing timely justice of the citizens who still have immense faith in the system ….

  3. The writer conveniently implies:
    1. If court decisions go in favour of perceived majoritarian view then they go against principles of justice and constitution
    2. Issues pertaining to national security should be open to broader examination by anyone, even those not having a clue of what it means
    3. Party with a majority cannot have its way in Lok Sabha (that’s what elected democracy essentially means) but opposition can scuttle parliamentary proceedings in Rajya sabha for 5 years just because they have a majority there
    4. Majority view is always unconstitutional (even if there is evidence to the contrary) but minority view is sacrosanct
    Well done MC!!

  4. Of the four cases, only one case relating to Ram Janambhoomi assumes great importance. In fact, the CJI needs to be complimented for the earnestness with which he has decided to say the last word on the vexed issue. He could have easily emulated his predecessors by pushing the case under carpet and retired happily. But he didn’t and we shall get the most important judicial verdict of the decade very soon.
    About the Rafale case, nothing remains of it. The error that crept in the earlier judgement pertained to the CAG Report. Since the Report is now submitted and is a public document , the matter has become infructuous. About the four documents that got leaked, the leakage will not have any significant impact. These documents are part of the entire files already perused by the CAG. CAG has already opined on it. What the court can add to the observations of the CAG is doubtful. Full details of Offset partners is yet to be submitted. But from what is submitted in March 2018, the JV with Reliance is going to get just 3% of the total offset amount. The largest chunk of around Rs 9000 crore is expected to go to DRDO for Kaveri project, for which negotiations are still on. What is there for the SC to object is beyond anybody’s comprehension. Now that the procurement process of fighter planes has commenced, it is inconceivable that the SC will cancel the deal. This is just not on. About filing FIR, criminality has to be established. Nothing, absolutely nothing is on the horizon to suggest any criminality. So, Rafale is just an hoax, nothing more.

    The third case about the money bill, hope that the honourable SC will not upset the applecart. If finance bills are stuck up in the Parliament, it will create economic crisis.

    Finally, it can be said that the issue is not about being with the government or against the government. The Apex Court hopefully should also consider the economic consequences of its judgement. It’s judgement scrapping spectrum allocations nearly destroyed the telecom industry. Now only 3 big players remain in the field ( don’t count BSNL &MTNL). Now the verdict about AGR is going to kill at least two of these players. The competition is killed. Only Jio will remain as a monopoly . . Raja and others have been exonerated. The conclusion of loss of Rs. 1.7 Lakh crore appears as a big joke. What has the country achieved?

  5. For the United Nations to express disappointment over the working of the Supreme Court of India, truly remarkable, possibly the first time in our history.

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