The Tenure Of CJI Thakur Was Not Glorious; His Successor Needs To Make Amends

At his farewell yesterday (3 January), outgoing Chief Justice of India TS Thakur jocularly told his successor JS Khehar, that the crowd gathered had come to “welcome you as the next CJI.” To which Justice Khehar is supposed to have retorted: “No, no, no, this is for you – they are celebrating the exit of a terrible Chief Justice.”

Terrible nor not, many people will be heaving a sigh of relief after waving goodbye to CJI Thakur, the man under whom the relationship between the executive and judiciary used to regularly hit new lows. Thakur presided over a divided Supreme Court, where one member of the collegium that picks judges, Justice J Chelameswar, disagreed with both the CJI and the constitutional bench set up to review the National Judicial Appointments Commission (NJAC). The bench rejected the NJAC – a curious case of the judiciary deciding in its own favour a case in which it was an interested party. Since then Justice Chelameswar has studiously avoided participating in the collegium’s discussions due to lack of transparency in its functioning.

One can only hope that under CJI Khehar this situation will be reversed. Khehar was the author of the majority judgment on NJAC, and he will preside over the top court for just under eight months till 27 August 2017. It does not help the country to have the executive and the judiciary at daggers drawn, and for the latter to do jobs that are not specified for it under the constitution. Under Thakur and some of the earlier CJIs, the Supreme Court and many High Courts have run roughshod over the delicate balance of power between executive, legislature and judiciary, with the latter now foraying into all areas.

Ex-CJI Thakur was a particularly egregious example of the same, since he spoke not only through his judgments, but also made a spectacle of himself on some public occasions, once by seemingly breaking down in front of the PM over the slow pace of judicial appointments after the NJAC judgment.

At a later stage, he claimed that judicial vacancies were largely due to appointment delays, neatly forgetting that legal delays are not the creation of the present government. The fact is that the Supreme Court has, through its own judgment, ignored amendments to the Code of Civil Procedure legislated in 1999 and 2002 that specified time-frames for the completion of civil proceedings. The court treated the law as just a guideline, and refused to curb the judiciary’s powers to grant adjournments.

When special petitions were filed against demonetisation of high-value notes, Thakur, while asking the government to address the cash shortage, loosely talked of the possibility of riots. This is hardly the kind of observation that does credit to a CJI.

On yet another occasion, Thakur talked about the need to audit government and its performance, when the government is subject to audits by the people at least once in five years. It is the judiciary which has no real accountability.

In one of his last two acts as CJI, a Thakur-led bench ordered the removal of the Board of Control for Cricket in India President Anurag Thakur, and his replacement with a new head (yet to be finalised). Is it the job of the court to decide how a private cricket body, albeit one that dominates the national cricket scene, should be run, even granting that it is run by a cabal of self-serving politicians and powers-that-be? And will the court take the rap if the new board also turns out to be equally prone to cliquish behaviour? Former Supreme Court Justice Markandey Katju had particularly harsh words to say against the court’s BCCI pronouncements.

Thakur also headed another seven-bench constitutional bench which pronounced on section 123 (3) of the Representation of People Act, 1951, which bars electoral candidates from seeking votes on the basis of religion, caste, community or language. This section says that anyone who does so will be guilty of indulging in a corrupt practice. In a 4-3 split verdict, Thakur was on the majority side, and wrote:

The Constitution forbids (the) state from mixing religion with politics. The state being secular in character will not identify itself with any one of the religions or religious denominations. This necessarily implies that religion will not play any role in the governance of the country which must at all times be secular in nature. Election is a secular exercise just as the functions of the elected representatives must be secular in both outlook and practice.

The judgment confuses state and people seeking electoral office as though they are one and the same. It is also not clear how this argument can be justified in a democratic republic that guarantees freedom of speech, and also makes specific mention of caste-based positive discrimination and reservations. This point was picked up by the minority judgment written by Justice DY Chandrachud, who observed:

Discussion on caste, creed, religion is constitutionally protected within and outside elections and this cannot be restricted. It is a matter of free speech and through this legitimate concerns of the society are addressed.

In short, CJI Thakur’s tenure hasn’t been the brightest spot in the Supreme Court’s history. Hopefully, his successor CJI Khehar will correct some of Thakur’s over-reach.