In November 2024, the retirement of the last Chief Justice of India, D.Y. Chandrachud, saw the longest-ever essay on this blog (“All the World’s a Stage“). On the other hand, the retirement of his successor, Chief Justice Sanjiv Khanna, presents something of a conundrum: what do you say about a tenure that is both short, and in which virtually nothing has happened? Silence, however, has its own significance, and a tenure marked by judicial reticence deserves as much scrutiny as one that was ever in the spotlight (see e.g., “The Sound of Silence: the Legacy of Chief Justice N.V. Ramana“).
In my post assessing the legacy of CJI Chandrachud, I proposed a three-part framework for examining the tenure of an outgoing Chief Justice, based upon the powers that they wield: first, the Chief Justice as the head of the collegium (the body primarily responsible for judicial appointments and transfers); secondly, the Chief Justice as the Master of the Roster (the administrative head of the Court), with a significant influence upon the direction of the Court; and thirdly, the Chief Justice as a constitutional judge, hearing and deciding cases while on the bench.
The shortness of CJI Khanna’s tenure makes it difficult to arrive at firm views about many aspects of the first two pillars of the framework. Patterns of listing and assigning cases, for example, only emerge over time (as they did in the case of CJI Chandrachud); similarly, it is difficult to discern shifts in what I have called “the direction of the Court” in such a time period (although, as we shall see below, this is at least in part due to CJI Khanna’s refusal to list almost any constitutional cases during his tenure). While there was the odd significant judgment during his tenure (the most prominent being the SC’s ruling on the powers of Governors), these cases had been assigned and were in the process of being heard before CJI Khanna became the Chief justice of India.
On the administrative side (other than greater coherence in the daily listing of cases), there are perhaps two (positive) developments that mark CJI Khanna’s tenure: first, the recent “transparency initiative,” which involved the Full Court agreeing to make public judges’ assets, the criteria for selection used by the Collegium, a caste-wise breakdown of appointments in the last three years (along with appointees’ relationships with sitting or former judges), and the time taken by the government to act on the Collegium’s recommendations, among others. The Supreme Court Observer (linked above) has a good piece contextualising the initiative. The last two pieces of information, undoubtedly, are highly positive developments in increasing the transparency with which the collegium works, including its relationship with the political executive.
At the same time, however, the selection criteria – so far part of a “general understanding” at the bar, now explicitly set out – only reiterate just how discretionary this process is. Terms such as “high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance” are so subjective, that pretty much any appointment can be justified on this kind of a touchstone. Of course, the appointment of judges must inevitably, at some level, be a subjective process, but that is what makes it even more important for the process to be transparent. Without rationalising and opening up the selection process (for instance, by inviting applications and then having interviews before nomination) to public scrutiny, documents of this kind appear to create transparency without actually doing anything of the sort.
Secondly, there is CJI Khanna’s handling of the infamous case of large piles of unaccountable cash having been allegedly recovered from the residence of Delhi High Court Judge, Yashwant Verma J, after a fire. While the process is yet to be completed, and the final report has not been made public, the CJI’s handling of the case, which raises very thorny issues at the intersection of judicial independence and accountability, deserves to be appreciated. Even more so, when we consider that the CJI made public the Delhi High Court Chief Justice’s report into the incident, something not expressly required by the in-house procedure that exists for investigating complaints against judges. As with the collegium issue noted above, it is important to acknowledge that this is happening under less-than-ideal conditions: one would want an impartial judicial service commission that would look into allegations of judicial corruption (as exists in multiple other countries). However, the possibility of such a commission coming into being that is genuinely independent of both the executive and the judiciary is a very very distant dream at the moment; and, under the less-than-ideal conditions of our present reality, one should perhaps accept that the case has been handled as well as it could have been.
This, then, brings us to the Chief Justice’s judicial record. It is here that this piece diverges from what we may call – for want of a better phrase – the consensus of the “liberal bar.” This consensus is best expressed in this piece published by Scroll.in, titled “‘CJI Khanna came out of syllabus’: Why BJP launched a bitter attack on the Supreme Court.” The headline prefigures the argument: through interviews with a number of practicing lawyers, the piece, in effect, makes the claim that after successive CJI tenures that saw the Supreme Court – to put it mildly – failing to stand up to the political executive (what, on this blog, and going further, I have called the phenomenon of the “Executive Court”), CJI Khanna did actively confront the executive, thus bringing the Court back (somewhat) to its constitutional role as the “sentinel on the qui vive“, zealously protecting citizens’ rights from State encroachment. To substantiate this claim, two orders – in particular – are cited: on the Places of Worship Act, and in the constitutional challenge to the new Waqf Act.
I shall examine these two orders in a moment, but before that – as I noted at the beginning of this post – it is equally important to ask what a Chief Justice didn’t do, as it is to ask what he did do. And on that, the record is straightforward: other than a judgment on arbitration law, no pending cases of constitutional significance were listed, heard, or decided by CJI Khanna. It is no excuse to say that this was not possible in a six-month term: as we saw during the tenure of CJI UU Lalit, this can be done even in a four-month tenure, if a Chief Justice truly wants to. The non-listing and non-hearing of constitutional cases constitutes a phenomenon that we have been discussing on this blog for the last eight years (we have been discussing it for so long because every single Chief Justice engages in it): that of judicial evasion. The Court (or rather, a Chief Justice) keeps a case pending without hearing it, thus maintaining a status quo that favours the party in the more powerful position (which is mostly the union executive). The most egregious recent example of this (out of many) is the Court’s refusal to adjudicate with finality, for almost ten years, the dispute between the government of Delhi and the union government; judicial evasion that lasted two whole terms of the Delhi government, and still awaits resolution.
Judicial evasion is rife in a range of other cases (discussed at the end of every Chief Justice’s tenure, including the last one), and CJI Khanna continued that tradition by not listing or hearing any of those pending constitutional disputes. Indeed, he was not averse to engaging in a bit of direct judicial evasion himself: before he became Chief Justice, he refused to hear and decide the challenge to the law on the appointment of election commissioners, running down the clock until the 2024 general election had come and gone. Once he became Chief Justice, he then recused himself from the hearing, on the basis that one of the questions in the case was whether or not the Chief Justice should be on the selection panel for election commissioners (this is an odd reason, as in other circumstances, the Supreme Court has been quite aware of the distinction between the CJI acting judicially, and the CJI acting in other capacities), and sent the case to another bench – where it still awaits decisions, as elections come and go.
I have previously argued, on multiple occasions, that the harm in judicial evasion lies in how it effectively “decides without deciding” in favour of the executive. I want to now add the other side of the coin: another feature of judicial evasion is how it blocks judicial accountability and encourages judicial impunity. In a legal system such as ours, the only possible avenue of judicial accountability is for courts to give public reasons for their judgments, so that those reasons can be scrutinised and debated by the public. The requirement of having to give public reasons, grounded in law, also acts as a check against particularly extreme forms of judicial arbitrariness. Thus, what judicial evasion essentially does is to exempt the Supreme Court from subjecting itself to the only form of public accountability that exists.
I bring up this point because it also relates to the second issue: that is, an analysis of what CJI Khanna did do. As noted above, the conversation here centres upon two disputes, relating to the Places of Worship Act and the Waqf Act. Pieces such as the Scroll piece (and others) tell us that these orders had good outcomes: the first put a stop to the mushrooming of lawsuits across the country, which were advancing an untenable interpretation of the Places of Worship Act in order to dispossess the Muslim community of their holy places; and the second put a halt to the enforcement of the expropriatory Waqf Act, which also primarily targeted Muslim properties.
To the extent that we are talking about outcomes, undoubtedly, these two orders contributed to maintaining communal harmony in the country, especially in the teeth of strong majoritarian opposition. And yet, what of the orders themselves? A quick look at the two orders (PoW Act; Waqf Act) reveals that one of the most basic and defining elements of a judicial order are missing: these orders have no legal reasoning. The PoW Act Order states that because the matter is now sub judice before the Supreme Court, no further suits may be filed and no further orders may be passed by other courts. This, with due respect, is an utter non sequitur: the fact that a matter is sub judice before the Supreme Court does not act as a trigger to stay all other legal proceedings involving the sub judice law. That can only happen if the law is stayed – and a stay order is something that requires detailed reasoning, embedded within fairly elaborate constitutional doctrine. The Waqf Act Order is even worse: it states that certain portions of the Act are not to be enforced because the Solicitor-General has made an assurance that they will not be enforced. And while the PoW Act Order is to continue until “further orders of the Court,” the Waqf Act Order is to continue “until the next hearing” (which, at the time of writing, is scheduled for Thursday, 15 May).
Effectively, therefore, in two crucial constitutional challenges, the Supreme Court has enforced a status quo without any reasoning underlying it. Why is it a problem? It is a problem for multiple reasons. At the most basic level, this is not adjudication. The Supreme Court’s role, in constitutional challenges of this kind, is to hear arguments and decide the case on the basis of legal and constitutional reasons. If, for some reason, it cannot do that quickly, then its role is to hear legal arguments on the question of whether or not the challenged law should be stayed pending a decision, and to – again – issue a reasoned decision, adhering to existing doctrinal standards. The two orders, however, have the tone of a royal decree, or a firman issued from on high: this is how it will be, because the Court says so.
This has knock-on effects. At the first instance, it treats citizens’ rights not as entitlements that they can enforce before the judiciary, but as bargaining chips, subject to a negotiation whose terms only the Court knows. In other words – as I have written previously, in another context (but also with respect to a judgment involving CJI Khanna) – this turns rights into objects of judicial patronage, which the Court can dispense or withhold as it pleases, without scrutiny or accountability. And secondly – and relatedly – it turns the practice of constitutional litigation into a completely judge-centric, hearing-by-hearing enterprise. Had the Court, for example, heard arguments and issued a reasoned judgment on stay in the PoW and Waqf cases, that position would have held the field until a final verdict. In these orders, however, there is nothing of the sort: the question of whether the Court’s interim order will continue will now depends on every subsequent hearing, and – because no reasons have been set out in the orders – entirely on the discretion of the next bench to hear this case. But this sort of continuing “sword of Damocles” hanging over the Petitioners’ heads is no way to conduct constitutional litigation: instead of subjecting State action to the touchstone of the Constitution and public reasoning, all it does is aggrandise judicial power, where every hearing becomes a question of whether or not this time the Court will continue its patronage, or withdraw it.
For these reasons, I do not think that these orders merit praise; rather, in my view, they present a disturbing picture of the executive Court “mirroring” the political executive, where judicial orders come to resemble executive decrees, in their shape, form, and content. On a good day, the judicial-executive chips may fall your way; on a bad day, they won’t. But that’s not how the processes of the highest Court in the land are supposed to work.
What, then, explains the contrary consensus about the Chief Justice’s tenure? I suspect it is akin to a starving person offered two scraps of leftover food, and to whom those two scraps are be akin to a banquet. Perhaps we have become so accustomed to previous Chief Justices not even doing this much, that two, non-reasoned interim orders that push back against the executive feel like we are dining once again at the banquet of judicial independence.
If so, then this is a tendency that I would caution against: because then we risk treating the scraps as all that we are entitled to from the Court, and cease to ask why we have been starving all this while. The standard against which any Chief Justice’s tenure ought to be measured is the standard that citizens should be entitled to expect from their highest court, and not the baseline standards that have been set by recent incumbents of the office. In other words, we should ask for more than we have been given from this Chief Justice’s tenure: i.e., a banquet of scraps.
