This is, of course, completely contrary to its assigned role under the Constitution, as per which there is meant to be a separation of powers between the executive, legislature, and judiciary. Jurists tell us that the Supreme Court is meant to be a counter-majoritarian institution since the Constitution guarantees fundamental rights to minorities, and non-discrimination on the grounds of religion, race, caste, sex or place of birth. It is expected that these guarantees will be strongly defended by the Supreme Court. This is particularly so when it comes to India’s unique Constitution since it guarantees direct access to the Supreme Court under Article 32, which was described by Dr. B. R. Ambedkar as the soul of the Constitution.

History, however, shows that in times of majoritarian rule the Supreme Court has not functioned as a counter-majoritarian force. Perhaps it is not fair to lay the entire blame on the Supreme Court for the collapse of our fundamental rights for the reason that the present ruling dispensation has perfected the art of functioning in an extra-constitutional framework. The Constitution has been cannibalized, not necessarily through amendments to the Constitution or legislation, but simply by ignoring the Constitution through practice, thereby subverting the rule of law.

The prime example of this is the lynching of minorities and more recently the disrupting of namaz in Gurugram through mob violence. Courts are accustomed to dealing with statutes and constitutions, and not with practices. A particular attack on a minority will be seen as an aberration or a one-off abuse of the law. However, the abuse of process has now been raised to the level of a policy, leaving us all vulnerable to attacks by violent mobs without any remedy, except to file individual FIRs (first information reports), which are of little use as they wind their way up through the courts.

Prosecution is in the hands of the State, and it selectively chooses to prosecute only its critics, not its supporters. In the present scenario, the Hindutva hate-mongers have rarely ever been prosecuted while human rights defenders have found themselves behind bars. All this has happened with the express consent of those who are charged with the duty of protecting our Constitutional rights, especially the Constitutional right to life and liberty.

If one were to judge the term of the Supreme Court on the deference of human rights in the Modi years, one would have to say that there is a failure of the role of the Court in protecting fundamental rights.

Nevertheless, an evaluation of the specific role of the Supreme Court during the year 2021 is in order, especially since in April 2021 we saw a new Chief Justice of India (CJI), a judge who has been hailed by some as a saviour. Whether or not he is, history will tell, but compared to his predecessors, he seems more transparent, participatory, and committed to the right to life and liberty.

There was much speculation whether he would at all be appointed CJI given that the Andhra Pradesh Chief Minister Jagan Mohan Reddy had lodged a complaint against him to the then CJI Bobde alleging that Justice Ramana and his relatives had engaged in corruption in relation to the acquisition of land in the newly-established city of Amravati, and was attempting to destabilize the Andhra Pradesh Government by allegedly influencing hearings and decisions in the Andhra Pradesh High Court. Nevertheless, true to tradition, he was not superseded and was recommended as his successor by the outgoing CJI Bobde upon his retirement.

We have seen his functioning for around eight months from which must be excluded the summer vacation, the Dussehra vacation, the Diwali vacation, and the Christmas vacation. Given the limited number of days we are left with to evaluate the functioning, his tenure to date must be seen as fairly dramatic and breaking with tradition in some ways.

Chief Justice Ramana does not hesitate to speak his mind while in court. Such as, for example, when he said that the law of sedition belongs to a bygone era. He has liberally accepted invitations to speak at book launches and social events, which gives us a rare glimpse into the mind of the judge. When speaking about the lack of representation of women in the judiciary, he supported reservations for women in the judiciary and said, “It’s a women’s right. And they deserve to have it.” He later clarified that what he meant was that there should be affirmative action in favor of women becoming judges so that they have their fair representation in the judiciary.

During a law day event, he said that the task of securing justice was not the responsibility of the judiciary alone and that the other two wings of governance, the executive and legislature were also repositories of constitutional trust to secure justice. He is a media-savvy judge, and all this makes for a very welcome change.

While one is used to retired judges speaking out, it is not often that we see sitting judges speak their minds. In that sense, Justice Ramana does make history, as did Justice Gautam Patel speaking at The Leaflet’s Constitution Day event.

Such transparency is welcome, and we get to know our judges better. Justice Ramana has expressed a pronounced constitutional commitment to freedom of speech and expression, and to bail, not jail.

While all this might seem flattering to the judges, we must record that the CJI has warranted criticism for not listing cases of great importance, such as the petitions challenging the Constitutional validity of the Citizenship Amendment Act, electoral bonds, and the abrogation of Article 370 of the Constitution, among others.

More recently, retired Chief Justice of India Justice Ranjan Gogoi pointed an accusing finger at him in his recently released book, stating that the challenge to Article 370 was assigned to Justice Ramana and he alone was responsible for the delay in hearing the case. We don’t have a response from Justice Ramana yet, except we know that the matter has not been listed.

Two significant decisions on the administrative side gave cause for serious concern, viz., the non-appointment of Justice AkilKureshi to the Supreme Court, and the transfer of Justice Sanjib Banerjee from the High Court of Madras to the High Court of Manipur. Neither of these decisions has been satisfactorily explained. (IPA Service)