Last week was one of the most momentous in the history of the Supreme Court of India. First, on Tuesday, by a majority of 3:2, it passed an order that set aside instant triple talaq as a valid method for Muslim men to divorce their wives. Second, on Thursday, by a unanimous verdict, nine judges of the apex court declared the right to privacy to be a fundamental right, guaranteed under the Constitution.
By the end of the week, Justice JS Khehar’s seven-month-plus tenure as Chief Justice of India came to an end, with Justice Dipak MIsra sworn into the top judicial post earlier today.
Those issues were taken up at Justice Khehar’s insistence and the conclusions reached by the Court were good ones. At the same time, he cannot take any credit for either of them, and a lingering sense of disappointment pervades the aftermath.
In a sense, therefore, that last week perfectly encapsulated Justice Khehar’s time at the Supreme Court, and in particular his time as Chief Justice. Here are the highlights of the legacy he leaves behind.
1. NJAC: A Pyrrhic Victory?
Justice Khehar became a Supreme Court judge in 2011. From then till 2015, his time at the top court in the country was uneventful, but in October 2015, his moment came.
And not just any moment. He was responsible for a mammoth 440-page leading majority opinion, striking down the 99th Constitutional Amendment, which established the National Judicial Appointments Commission (NJAC). The NJAC had been one of the new (as it was then) government’s early priorities, meant to replace the Supreme Court’s old “collegium” system, which was often alleged to promote nepotism.
Justice Khehar therefore played a hugely significant role in thwarting the government’s ambitions, a move which was welcomed by many of those in the legal profession and outside it who were concerned about political interference in judicial appointments. But even for those against NJAC, Justice Khehar’s opinion was felt to be lacking in its logic, making a leap of reasoning that did not quite flow.
The judgment also proved a Pyrrhic victory, as the judiciary subsequently found itself at odds with the government over various matters, especially between ex-CJI Thakur and them over judicial appointments. The friction has certainly not proved helpful, hanging over many other decisions of the Court.
Justice Khehar also had to face the consequences of the decision personally as he failed to agree on a Memorandum of Procedure (MOP) with the government for judicial appointments, with the government insisting on getting a veto for national security purposes. This means that new CJI Dipak Misra will begin his tenure with this very hot potato to deal with.
2. Valiant Attempts to Reduce Pendency
On the brighter side of things, Justice Khehar will also hopefully be remembered for making genuine attempts to improve the efficiency of the court system. Within only 3 months, he had reduced pendency of cases at the Supreme Court by over 2,000.
One of the ways in which he did this was to give improved directions to the registry, getting them to list all pending PILs and writ petitions which could be swiftly disposed of. Another was to list together cases which involved the same person.
He was also able to fill up many vacancies in the High Courts and the Supreme Court which had been bones of contention between earlier CJIs and the government – while the MOP may not have been agreed, this still went some way to help improve the efficiency of the courts, and helped repair relations to an extent.
Justice Khehar proved to be a no-nonsense judge as part of this quest, castigating petitioners for frivolous litigation and fining them large amounts, and insisting on the hearing of matters during vacations, even those requiring Constitution Benches (5+ judges).
3. The Kalikho Pul Controversy
Unfortunately, Justice Khehar’s tenure will also be remembered for the controversy over the suicide note of ex-Arunachal Pradesh Chief Minister Kalikho Pul. The deceased politician’s widow, Dangwimsai Pul, filed a complaint against various judges of the Supreme Court who had been named in the suicide note, alleging that they took bribes to influence judgments.
Justice Khehar was allegedly one of the judges mentioned in the note, with allegations that one of his sons would receive money from parties looking to influence the judge’s decisions.
The matter became controversial because Dangwimsai Pul had specifically filed for administrative action against the judges, which would mean that an investigation would be launched, and further action contemplated after the results of the investigation.
Justice Khehar, however, had the case listed on the judicial side as a writ petition, which her lawyer, senior advocate Dushyant Dave, argued would negatively impact her options to seek justice, as the court’s decision on the writ petition would be final, barring a further government enquiry.
The complaint was eventually withdrawn, amid a great deal of discontent at the way in which the CJI had handled the matter.
4. Triple Talaq Judgment – An Embarrassment?
The majority decision of the Supreme Court in the triple talaq case has been hailed as a great victory for the rights of Muslim women in the country, notwithstanding the confusion that surrounds exactly how it was arrived at.
Justice Khehar, who had specifically listed the case ahead of other matters, had probably expected that he would be hailed as instrumental in improving the lot of these women. However, his judgment in the case ended up as a minority opinion, thanks to dissenting views being adopted by 3 of the 5 judges on the Constitution Bench deciding the case.
To make matters worse, Justice Khehar’s decision came in for a great deal of criticism for its equation of personal laws with fundamental rights, which led to him finding that the courts could not strike down triple talaq (talaq-e-biddat to be precise), and that the legislature had to frame a law to do so.
There was further shock at his decision to issue an injunction against what he had just deemed something protected at the level of a fundamental right, without any expressed basis in law.
By arriving at the decision he did, for what appears to have been incorrect reasoning, CJI Khehar tarnished what should have been a starring role in a landmark decision that will not be forgotten anytime soon.
5. Fundamental Right to Privacy: Better Late Than Never
Of course, Justice Khehar had one more chance to leave behind a lasting jurisprudential legacy, in the even more crucial case to decide whether Indian citizens have a fundamental right to privacy.
For all the satisfaction in the unanimous decision of the 9 judge bench, it will always be viewed with a great degree of regret and bitterness. The question of the status of privacy had been referred to a Constitution Bench as far back as August 2015, during Justice Dattu’s tenure as CJI. He failed to list it urgently as the judges in the case had requested, as did CJI Thakur.
And Justice Khehar looked like he would go down the same path, ignoring requests for listing the matter early in the year after his tenure began, rejecting requests to hear the matter even as the government linked more and more matters to Aadhaar, challenges to which desperately needed an answer on whether privacy was a fundamental right.
That he finally constituted the required bench within his tenure was eventually a bit of a surprise, as was the speed with which the required 9-judge bench was set up. Without his eventual decisiveness, we cannot know when the matter would have finally been heard, though this does not excuse his tardiness in hearing the matter earlier, when it would have been most helpful, for instance, in resolving the Aadhaar-PAN case.
And yet, once again, despite finally getting things in place for this most relevant of judgments, Justice Khehar failed to write an opinion on it, despite 6 other judges doing so. He endorsed Justice Chandrachud’s judgment, of course, but it is most surprising that a sitting CJI failed to write an opinion for a judgment which will have far-reaching consequences for generations to come.
Was it a crisis of confidence in the end, caused by the debacle of the triple talaq judgment? Was it a result of machinations by the other judges, as has been rather maliciously whispered in some circles? Or did Justice Khehar just put aside his pride, confident and comfortable with the learned opinions of his fellow judges?
We may never know the answer. We do know, however, that Justice Khehar’s tenure ended on a great high. It is just unfortunate that his legacy will not be determined solely by this, and that his role in that ending is also in doubt.
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