THE SUPREME COURT OF INDIA stands on a 17-acre triangular plot in central Delhi. It is built to resemble—from an aerial view—weighing scales, representing justice. The central wing, from which the scales hang, consists of 15 courtrooms. The right wing contains the offices of the attorney general for India and the solicitor generals of India, as well as the bar room for lawyers and a library. The left wing contains the administrative offices of the court.
Under the central dome of the building is the court of the Chief Justice of India. As the administrative head of the Supreme Court, the chief justice wields immense power over the court’s functioning, deciding what matters will be heard by which bench.
The chief justice’s courtroom has wood-panelled walls and a high ceiling, from which around a dozen fans hang low, spinning slowly. The judges sit on high-backed chairs lined with red velvet, placed on a raised platform under the seal of the Supreme Court. Arguing counsels sit on a bench placed on the floor about 15 feet away. A sense of occasion settles over visitors when they come in; lawyers often bow before entering and leaving the room.
Between the judges and the arguing counsels’ bench are tables stacked with rows of thick hardbound volumes, which also line shelves along the walls of the courtroom. These are the “Supreme Court Cases” volumes—yearly reports of the judgments delivered by the 44 chief justices who have presided over this court, and their fellow judges. Over the decades, these judgments have addressed questions such as whether the state has the power to curtail fundamental rights, whether election candidates can ask for votes in the name of religion, and whether gay sex should be decriminalised. The history of the Supreme Court is recorded in all its glories and flaws in these pages.
The powers that the constitution confers upon the Supreme Court are vast. Among other kinds of cases, it can hear appeals arising from disputes in the various high courts of the country; disputes between states, or between a state and the centre; and public-interest litigation filed directly before it. One of the most far-reaching duties of the court is to examine the constitutionality of laws passed by the legislature—including amendments to the Constitution of India.
Occasionally, the Supreme Court’s exercise of its power to review laws foments tension between the judiciary on one hand and the executive and legislature on the other. Such was the case on 16 October 2015, when a five-judge bench led by Jagdish Singh Khehar struck down the 99th constitutional amendment.
The amendment proposed to set up a body—the National Judicial Appointments Commission, or NJAC—to make appointments to the high courts and the Supreme Court. The commission would comprise representatives from both the government and the judiciary, as well as two “eminent persons.”
The NJAC Act was intended to replace the collegium system of judicial appointments, which was laid down by the Supreme Court itself, in 1993. The introduction of the collegium system was seen by many as an usurpation of power by the judiciary. The constituent assembly had been careful not to vest the power of appointing judges in either the judiciary or the executive alone. BR Ambedkar, the primary architect of the constitution, advocated a middle road, whereby the executive would make appointments in consultation with the judiciary. With its 1993 judgment, the Supreme Court clipped the executive’s powers over judicial appointments.
After its sweeping victory in the 2014 general election, the Bharatiya Janata Party-led National Democratic Alliance government, under Narendra Modi, moved quickly to pass the amendment to set up the NJAC. It was the first law passed after the government came to power. But the executive’s attempt to wrest control over judicial appointments was halted in its tracks by the Supreme Court’s 2015 judgment, which declared the act “unconstitutional and void.”
The executive seethed with indignation. The attorney general for India, Mukul Rohatgi, called the judgment “flawed”; the law minister, Ravi Shankar Prasad, described it as “a setback for parliamentary sovereignty.”
Even though, in his judgment, Khehar penned a spirited defence of the collegium system, he also conceded that it needed to be re-evaluated. In subsequent hearings after that judgment, the bench considered ways in which the system could be improved; it sought suggestions from lawyers, academics and even the general public. On 16 December 2015, two months after striking down the NJAC Act, the bench directed the government to come up with a new memorandum of procedure for the appointments, to replace the existing selection process.
This apparently conciliatory measure did little to placate the executive. In the collegium system, though judges select judges, they are technically appointed by the president—effectively, the executive. For the remainder of the then Chief Justice of India TS Thakur’s term, the cabinet dragged its feet over judicial appointments. The number of judicial vacancies and the backlog of cases in the courts ballooned. During a speech at an event in Delhi in April 2016, Thakur was moved to tears as he spoke of the shortage of judges across the country’s courts, and appealed to the prime minister, who was also in attendance, to “rise to the occasion and realise that it is not enough to criticise.”
Tensions remained high months later, at an event to mark Constitution Day, on 26 November 2016, where both the law minister and the attorney general sniped at the Supreme Court in their speeches. “The court must give directions, if the executive fails and falters,” the law minister said. “The court must quash the orders, the court must set aside laws which are found to be wanting in constitutional compliance. But governance must remain with those who are elected to govern.” He also remarked that the Supreme Court had failed the country during the Emergency. The attorney general warned that the “judiciary must realise that it also has a lakshman rekha like others. Greater the power, greater the need for circumspection.”
Then, Khehar, who was due to take over as chief justice in about a month, took the lectern. He spoke of how the judiciary had, since Independence, struck down “unprincipled, self-serving and reprehensible” amendments passed by the government. He cited the 39th amendment, passed by Prime Minister Indira Gandhi during the Emergency to put her own election beyond the scrutiny of the courts. He then referred to “certain recent constitutional amendments which had elements of interference with judicial independence.” Faced with these pressures, Khehar said, the Supreme Court had “consistently tried to uphold the basic ethos of constitutional philosophy.”
“This,” he then said, turning to address the attorney general directly, “is the lakshman rekha that you seek.”
THE PRECISE POSITION OF THIS LAKSHMAN REKHA—effectively, an inviolable line—between the judiciary on one hand and the executive and legislature on the other, is a contentious question with a long history. Though the constitution defines the functions of all three organs of government, there have nevertheless been repeated clashes over the years about how these functions should be distributed—most often, and most dramatically, over the issue of the limits of the judiciary’s power. The issue has been particularly fraught when it comes to the question of whether the executive or the judiciary should have a greater role in appointing judges to the higher judiciary.
Khehar’s judgment in the NJAC case ensured that, at least for the foreseeable future, power over appointments to the judiciary would remain with the judiciary.
A little over a year after the judgment, on 4 January, Khehar was sworn in as chief justice. He has a short tenure, of less than eight months, in the post. On 28 August, he will turn 65 years old, and, as per the constitution, retire from the Supreme Court.
Given his reputation and the NJAC majority judgment, many expected that Khehar’s term as chief justice would see a heightened tussle between the executive and the judiciary, with each trying to protect their turf.
But events have unfolded differently. The prime minister has publicly acknowledged his appreciation of Khehar, and Khehar has publicly assured the government that the Supreme Court will not step on the parliament and executive’s domain. Over the past six months, I spoke to several senior advocates and former judges in Delhi and Chandigarh, many of whom had known Khehar for the better part of his life, to try and understand the man and the institution he heads. A common theme in these conversations was the apparent truce that had been reached between the executive and the judiciary.
KHEHAR’S FIRST DAY in office as the Chief Justice of India saw him faced with a challenging task. On 4 January, after his oath-taking ceremony, Khehar sat on a three-member committee to select a new director for the Central Bureau of Investigation—a role that had been filled by an acting director after the retirement of the previous chief, Anil Sinha, in December. The other members of the committee were Prime Minister Modi and the leader of the opposition, the Congress’s Mallikarjun Kharge. Along with the prime minister, Khehar voted for the Delhi police commissioner, Alok Verma, an officer who had never worked for the CBI, and whose tenure in Delhi had raised questions after police arrested 13 members of the capital’s ruling Aam Aadmi Party on tenuous grounds.
Less than a month earlier, a petition in the Supreme Court had challenged the appointment of Rakesh Asthana as the CBI’s acting director. Asthana had been given the post after the government cut short the tenure of the agency’s then senior-most officer, RK Dutta, who was shifted to the home ministry. Dutta had been overseeing some of the agency’s most sensitive investigations, including those into the 2G spectrum allocations. The Supreme Court had earlier directed the government not to shift any officers involved in that and certain other probes. In December, a bench of Kurian Joseph and Rohinton Nariman demanded to know why Dutta was shifted out of the CBI “without the nod of this court.” Tushar Mehta, an additional solicitor general, replied that a meeting of the selection committee to appoint the agency’s new director would be convened soon.
Hours after Verma’s appointment as CBI director, Kharge issued a statement against it. “I gave my opinion in writing,” he told the Indian Express. “I said a person who fulfils all the conditions should be appointed. A person who has a long service record should be appointed. I said all rules and procedures should be followed and a person who has worked in the CBI, on corruption cases, should be given the post. They have ignored that.”
The lawyer and activist Prashant Bhushan filed a petition to obtain the minutes of the selection committee’s meeting, to ascertain whether Verma’s appointment had been made in accordance with the procedure laid down by the Supreme Court. Two weeks later, on 20 January, the government’s lawyers argued fervently in the Supreme Court against the disclosure. “A decision has been taken and order has been issued,” Rohatgi said. To Bhushan, he said, “Why are you pushing for something which is over? There is no question of placing the minutes of the meeting.” Mehta added that the selection committee comprised the prime minister, the chief justice and the leader of the opposition, and “their wisdom cannot be questioned.”
The petition was dismissed. In response to Bhushan’s assertion that the selection committee was not convened in December despite the fact that Sinha had retired on 2 December, the bench, comprising Kurian Joseph and AM Khanwilkar, reminded him that there had been a “change of guard” in the office of the chief justice.
Earlier in January, Khehar had directed the government to audit the accounts of the more than 3.2 million NGOs functioning in the country. “I mean, they are aware that this government is persecuting NGOs of a particular philosophy, that do not align with the stand of the government on a given issue,” a former member of the higher judiciary told me.
Towards the end of Khehar’s first month in office, the judiciary witnessed unprecedented internal strife. CS Karnan, a Calcutta High Court judge who had previously alleged caste bias in the judiciary, wrote to the prime minister, naming 20 sitting and retired judges that he claimed were corrupt, and demanding an investigation. Khehar was powerless to remove Karnan from his post since, by law, a member of the higher judiciary can only be removed by parliament. In early March, for the first time in history, the Supreme Court initiated contempt proceedings against a sitting high-court judge. Karnan remained defiant; in response, he passed orders against the seven judges on the bench and asked them to appear before him.
Finally, in May, the bench held Karnan guilty of contempt of court, and sentenced him to six months in prison. Shockingly, the bench also directed “that no further statements made by him should be published hereafter” in the print or electronic media. “When the only weapon you have is a hammer, every problem looks like a nail,” the lawyer and writer Gautam Bhatia noted about the order in an article for the news website Scroll. “The order is neither narrow in scope, nor in its duration: it is, in the true sense of the word, a blanket gag order.”
“There is something particularly disturbing about punishing a man not for what he has said, but for what he might say (we are dangerously close to the realm of thought-crimes here),” Bhatia continued. “There is something particularly disturbing about taking the choice and judgment away from the media about what to report and what not to report, to decide for themselves what statements might be legal and what illegal, and imposing a blanket ban on reporting anything one individual might say, in advance.”
Khehar’s second month in office, too, was stormy. It began with the circulation over WhatsApp of a note allegedly written by the late Kalikho Pul, the former chief minister of Arunachal Pradesh, who allegedly committed suicide in August. In a series of complex political developments that unfolded over 2015 and 2016, Pul had been expelled from the Congress, after which he toppled the party’s government in his state, and then, in February 2016, took charge as the chief minister with the support of rebel Congress MLAs. But his government was dismissed by a July 2016 Supreme Court judgment, delivered by a bench headed by Khehar, which restored the Congress government in the state. Less than a month later, Pul was found hanging in the chief minister’s official bungalow in Itanagar, the state’s capital. Pul had allegedly typed a 60-page suicide note in Hindi, in which he levelled allegations of corruption against several Congress politicians as well as President Pranab Mukherjee. The note also contained allegations against judges—it claimed that Khehar’s son Birinder, and Aditya Misra, the son of the second most senior Supreme Court judge, Dipak Misra, had approached Pul and asked for Rs 49 crore and Rs 37 crore, respectively, in return for a judgment in his favour.
The note did not provide any evidence to support these claims, and most people I spoke to for this story did not seem troubled by the allegations. “The government does not like a strong, strict and independent judge,” one Supreme Court lawyer told me. “And there are always efforts to undermine the credibility of a judge by the political class—so we should be very careful about how we think about that note.” But almost everyone was troubled by what followed.
In February, Pul’s wife, Dangwimsai, wrote a letter to Khehar, requesting permission for an FIR to be filed against the judges named in the note. “I am sure that you will have the matter placed before the appropriate judge in accordance with the judgment in the Veeraswami case,” Dangwimsai wrote, referring to a 1991 case in which the Supreme Court ruled that judges of the high courts and the Supreme Court could be probed for corruption, but only with the prior permission of the Chief Justice.
The letter, which requested an administrative action and not a judicial one, put Khehar in a tricky position. There would have been a clear conflict of interest if he handled it himself, since he was named in Pul’s note. In the interest of transparency and fairness, he was obligated to pass the request on to another judge—though the next senior-most judge, Dipak Misra, too, was named in the note.
Khehar chose to convert the letter into a criminal petition, and listed it before a bench of UU Lalit and AK Goel. The senior lawyer Dushyant Dave appeared before the bench on behalf of Dangwimsai.
On the morning of 23 February, court number 13 in the Supreme Court complex, where the matter was being heard, had an audience that spilled out into the corridor. “We had sought an administrative direction, why was it taken on the judicial side?” Dave asked, in his characteristically animated manner. “We want to know the reason behind it. Why is the chief justice not precluded from taking a decision on the letter, as the allegations in the suicide note concerned the CJI’s son?”
Then Dave said something ominous: “There was a development on Monday evening. A former judge of the Supreme Court met me on behalf of the CJI. I do not want to say more. I beg your lordships to stay away from this case.”
The veracity of the claims Pul made in his letter was now a secondary question. Rather, discussions revolved around the propriety of Khehar’s handling of an administrative matter where allegations of corruption were cast against the senior-most judges of the Supreme Court. “We will now approach the vice president for relief as the suicide note contains allegations against the president also,” Dave told the court. “If the Supreme Court decides on the letter after converting it into a writ petition, then all other avenues for remedies will be closed.” The bench allowed Dangwimsai to withdraw the petition. She has since presented her case to the vice president of India.
In March, Dave told the website Bar and Bench, “It is too serious a matter. The charges are very, very serious and they really go to the very foundation of the Supreme Court, which has now been shaken because of this.”
Birinder Singh Khehar, who, according to the suicide note, approached Pul to ask for money, is Khehar’s youngest son and a lawyer practising at the Punjab and Haryana High Court. During the course of my conversations about Pul’s allegations against Birinder with more than a dozen senior lawyers in Chandigarh, the term “uncle judges” came up repeatedly. The term, acknowledged by the Law Commission of India in its 230th report to the Law Ministry, in 2009, refers to a phenomenon whereby judges’ kin receive preferential treatment in courtrooms. It also came up in connection with the arrest in December of Rohit Tandon, a Supreme Court lawyer and the son of a former judge of the Punjab and Haryana High Court. Tandon was arrested for money laundering by the Enforcement Directorate, which is overseen by the finance ministry.
When I spoke to Birinder on the phone in March, he said he had “no idea whatsoever” about the Pul matter. “Who is that?” he replied when I asked for a comment on Pul’s allegation against him. When I told him I hoped to meet him because I was trying to hear the perspectives of people who had known Khehar, he said, “Can we stop playing cat and mouse with each other?” Then, he said, “Why don’t you tell me, who all have you met?”—a question he repeated several times during our five-minute conversation.
At the end of May, the Delhi High Court dismissed a plea seeking the registration of an FIR based on the allegations contained in the suicide note. The court said that the petitioners had made “wild allegations” based on “mere hearsay,” and slapped a fine of Rs 2.75 lakh on them.
THE FIRST SIKH to become the Chief Justice of India, Khehar has the air of a taskmaster about him. He keeps his whitening beard trimmed and wears frameless spectacles, with the tips tucked into his turban. He ties his turban in a compact, angular style typical of East African Sikhs—a nod to childhood years that he spent in Kenya.
Khehar was born on 28 August 1952, in Nairobi, the capital of Kenya—then a colony of the British Empire—where his father had a government job in the postal service. The family moved to the newly created Chandigarh when he was still in his early days of schooling. Several people who have known him since then told me that Khehar’s family was financially comfortable and bought a house in Sector 21, where many other Sikh immigrant families from Africa also resided.
Khehar joined the Government Model Senior Secondary School in Sector 16. Mark-sheets and other detailed records from that time were not available at the school when I visited in March, but the principal was able to find an entry in an old register that said Khehar left the school after “having satisfactorily completed standard 7th.” The register records Khehar’s reason for quitting the school as “leaving the country.” A lawyer in the Punjab and Haryana High Court who knew Khehar in Kenya and later worked with him as a junior lawyer mentioned to me that Khehar was an excellent hockey player, and represented Nairobi in a number of tournaments. These snippets of information suggested that the family moved back to Kenya for a period after their return to India. When I sought another appointment with the lawyer to confirm the details of his account, he refused to meet me.
In 1974, Khehar joined Panjab University to study for an LLB, or bachelor’s law degree. Balram Gupta, who taught Khehar constitutional law at the university and now heads the National Judicial Academy in Chandigarh, told me that Khehar came to the university after finishing a bachelor’s degree in science. Khehar completed his LLB in 1977, and continued to study at the university for his LLM, or master’s law degree.
Virendra Kumar, a thin, soft-spoken, mild-mannered man who also taught Khehar at the university, and later served as the chairman of the law department, remembered Khehar visiting his house after classes and on holidays to discuss his studies. A lawyer whose father owned a shop in Khehar’s neighbourhood remembered him “zipping across the streets” on a “racing-type bicycle with slim tyres.”
Khehar’s college years overlapped with the Emergency and its aftermath, when the university campus grew increasingly politicised. In 1977, for the first time, the university held direct elections for a student union. I came across nothing that suggested Khehar was involved in campus politics. According to Gupta, his fields of interest were moot courts and debates. “He was most keen to nurture his communication skills wherever he could,” Gupta said.
But reverberations of the Emergency were felt even in the classroom. “Obviously, we discussed everything that was going on in the country at that point of time,” Gupta told me. “There were about 30 students in the LLM course, and the debates kept happening. The common thread was that this is something shocking. In classes, we talked about how a situation like this could have been avoided. We talked about the role of lawyers and of judges.” In 1979, Khehar finished his LLM degree, topping the university.
Khehar started practising law as a junior with Jawahar Lal Gupta, then one of Chandigarh’s leading advocates of service law—the legal field that deals with matters related to public employment, including issues of appointments, promotions, terminations and pensions. Gupta would go on to become the chief justice of the Kerala High Court.
At the time, Khehar did not have a library of his own. “He used to go to JL Gupta’s house every time he needed to refer an old case or another book,” the lawyer in the Punjab and Haryana High Court told me. Khehar’s father did not approve of this. “One day, his father had had enough of it,” the lawyer said. “He asked, how much does a library cost? At that time, it was something like twenty, thirty thousand—a big sum in those days. And soon enough, a library was built for him at home.”
Despite benefitting from this paternal generosity, Khehar did not want to be financially dependent on his father, according to Balram Gupta, and decided to work at the university after he had completed his studies. “I think that was one of the reasons why he took up the job of a visiting faculty at the university,” Gupta said. Khehar started teaching in 1980, while he was still working as a junior with JL Gupta. He taught evidence law and received a salary of Rs 600 per month. Last year, speaking at Panjab University, Khehar declared that he could not explain in words how much he enjoyed getting this money, most of which he spent on movies and at restaurants. He continued to deliver guest lectures at the university until 1986, turning down Virendra Kumar’s offer to join as a full-time professor. By that time, he had quit JL Gupta’s office and set up his own private practice.
GS Singhvi, a former judge of the Punjab and Haryana High Court, who went on to serve on the Supreme Court, told me that a significant portion of the litigation in Chandigarh related to land and service law. Khehar’s specialisation was, therefore, one of the most profitable streams of practice.
By all accounts, Khehar was a hard worker. Varinder Singh Chandok, a lawyer whose family lived in the house next to Khehar’s, told me that he once went to Khehar’s house at around 2 am expecting to find him asleep, only to see him hunched over his desk, surrounded by case files and reference books, making notes. Another lawyer, who joined Khehar as a junior around this time, told me that he only took one day off in the week. “He never worked on a Friday,” he told me. “He used to say that, ‘We work throughout the week—there should at least be one day to enjoy that work’s benefits.’”
Khehar did, indeed, seem to relish the little leisure time he had. Once, this lawyer told me, Khehar put his juniors, who had come with their lunches packed for the workday, in his car—a Maruti 800 with a registration plate that matched his house number, 2206. They drove towards Shimla, “but we never ended up reaching there,” he said. “We just found this spot somewhere in the hills and sat there drinking beers and vodka till the end of the day.”
Chandok, who still refers to Khehar as “sir,” also remembers him as a fitness enthusiast. He recounted that, late one night, during a get-together in the Nepli forest reserve, on the outskirts of Chandigarh, Khehar convinced people to sprint against him, and then outran them. “Even after becoming a judge, sir used to go for his run” by Chandigarh’s Sukhna Lake, Chandok said. “It was quite a sight to see gun-wielding security men sprinting behind him, trying to keep up.”
Even in those days, Chandok recounted, Khehar was a stickler for discipline. “He had this art of getting people in order—a decorum had to be maintained around him,” he said. “And he himself was the standard—you would never find him indulging in loose talk or even sitting inappropriately in his own house. He has a very British personality that way.”
Chandok told me that Khehar would gently reprimand juniors who referred to his citation registers—large journals in which lawyers record the details of important judgments that they might need to cite in their own cases. Chandok said Khehar would tell them, “You might win the case by doing that, but what have you learnt if you haven’t browsed through these books yourself?” Khehar, he added, would often say, “There are no shortcuts to success—it happens step by step by step.”
Khehar was appointed as an additional advocate general for Punjab in January 1992. He was, by this time, making enough in his private practice to not need the money offered to him by the state of Punjab. According to a lawyer who was close to Khehar, he never took his monthly salary of R2,200. Soon, he was appointed to the position of senior standing counsel for Chandigarh.
In 1993, Khehar worked on the most important case of his career up to that point, assisting the then lawyer and future politician Kapil Sibal in his defence of V Ramaswami, a judge of the Supreme Court—the court’s first judge against whom removal proceedings had been initiated.
In February 1995, Khehar was designated a senior advocate by the Punjab and Haryana High Court. In the years that followed, he became a leading authority on service law in Chandigarh. Another lawyer in the Punjab and Haryana High Court told me that even the bench sometimes sought his professional expertise on service matters. In February 1999, Khehar was appointed as a judge in the Punjab and Haryana High Court.
Speaking in April at the closing ceremony of the year-long celebration of the Allahabad High Court’s sesquicentennial anniversary, Khehar said that when he became a judge he knew nothing about the law beyond service matters. “Sirf ek field law ki aati thhi, usme hum sab kuchh bata sakte thhe, baaki kuchh nahi aata thha,” he said—I knew this one field of law, and that I knew fully, but nothing other than that.
With his elevation to the bench, Khehar moved to judges’ quarters in Chandigarh’s Sector 4, next to the house of GS Singhvi, who would later be his colleague in the Supreme Court. I met Singhvi at his house in Delhi. He was the most reticent person I met in the course of my reporting, and he made it clear that he does not “like to opine on the wisdom of x or y or z.”
Singhvi told me that, as a senior judge, he gave Khehar some guidance during his early years on the bench, particularly since the younger man was interested in learning how to conduct himself as a judge. “The only advice I gave him was to move in a straight line,” Singhvi told me. “Don’t look left, don’t look right. See what justice demands.” During our hour-long conversation, we touched on the question of the ideal conduct of a judge. According to Singhvi, it was not sufficient “that judges should be honest.” For him, “their conduct must be above board in all respects.”
According to Singhvi, during this time Khehar gained an interest in constitutional law. Khehar spent nine years as a judge in the Punjab and Haryana High Court, during which he wrote more than 200 judgments. Lawyers who appeared before him remember Khehar as a cooperative judge who encouraged junior lawyers to step up and argue cases. Many lawyers recalled that he held court the day after his father passed away.
In 2004, the Punjab and Haryana High Court witnessed an unprecedented debacle, when, according to a story in the magazine Frontline, 25 out of its 28 judges went on leave without providing any explanation to the court’s chief justice, BK Roy. “What precipitated the Judges’ decision to ‘strike’ was the notice sent by Chief Justice Roy to two colleagues seeking their explanation for accepting honorary membership in the Forest Hill Golf and Country Club near Chandigarh,” Frontline reported.
During the hearing of a petition concerning the allegedly illegal construction of the club on forest land, the report stated, the club submitted a list of VIPs who had been given honorary membership. Roy, who was hearing the matter with another judge, Surya Kant, saw on the list the names of two judges of the high court. When he demanded an explanation from those judges, they responded by saying that he had no jurisdiction to hold them accountable for their club membership. Other senior judges came to their defence and, eventually, 20 judges, standing in solidarity, sent a letter of protest to Roy.
I wanted to know what role, if any, Khehar played in the episode. But lawyers in Chandigarh refused to talk about it. Some told me that they simply did not remember it, while others said they never learnt what happened. One senior advocate, after admitting that he had been privy to the matter, declined to say anything about it, insisting that it was “ancient history.” When I brought this question up with Balram Gupta, he replied, “Every judge of the court, except for the one who was hearing the petition with the chief justice, abstained from work.”
In May 2009, Khehar headed a three-judge bench that passed a judgment defining the identity of a Sikh. The lead petition was filed by a young woman named Gurleen Kaur and others who had been denied admission to a medical college run by the Shiromani Gurdwara Parbandhak Committee on the grounds that they plucked their eyebrows or trimmed their beards—acts which, the body said, went against the tenets of the Sikh religion.
During the hearing of that case, the court received letters from across the world suggesting that a court had no business weighing in on the beliefs of Sikhism. But, in the judgment, Khehar defended judicial intervention in matters of religion and pronounced a verdict that is striking for its conservatism. The bench held that “retaining hair unshorn is a fundamental tenet of the Sikh religion and a Sikh is the one who kept unshorn hair and does not trim beard or plucked eyebrows.”
The judgment further noted, “Looking for an approach which would make a religion more acceptable to the present social order, or the presently acceptable humanistic approach, is what those professing a religion would like to resist. Religion has to be perceived, not as liberals and as others think of it, but as it is, without any change or modifications.”
After having served as the acting chief justice of the Punjab and Haryana High Court twice, Khehar was elevated in 2009 to become the chief justice of the High Court of Uttarakhand, at Nainital. After brief stints in this court and the Karnataka High Court as the chief justice, Khehar was elevated in 2011 to the Supreme Court.
THE LATE HISTORIAN GRANVILLE AUSTIN, one of the foremost authorities on the Indian constitution, observed that the “members of the constituent assembly brought to the framing of the judicial provisions of the constitution an idealism equalled only by that shown towards fundamental rights.” How judges of the higher courts should be appointed was a key question over which the members of the assembly deliberated.
Building on the recommendations of a committee formed in May 1947 to consider the powers and provisions of the proposed Supreme Court, the constituent assembly held wide-ranging debates on the advantages and disadvantages of various methods of judicial appointment. There were broadly two camps on the question. One believed that judges should not be involved in the appointment of judges, and that the process should be controlled by the executive and legislature. Another believed that judges should have a major role in the process—one member of the assembly recommended that the president obtain the “concurrence of the chief justice.”
BR Ambedkar rejected all of these proposals. “There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself,” he said during a constituent assembly debate. He expounded on the system of appointments followed by Great Britain and the United States. In the former, he said, “the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day.” The “opposite system” was followed in the latter, he said, “where, for instance, officers of the Supreme Court as well as other offices of the State shall be made only with the concurrence of the Senate in the United States.”
Ambedkar was of the opinion that “in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the president, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day.” He also did not envision the legislature playing a major role, saying, “it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations.” His proposed method, he said, “therefore, steers a middle course. It does not make the president the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the legislature.”
“With regard to the question of the concurrence of the chief justice,” Ambedkar continued, “it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that is also a dangerous proposition.”
The final draft of the constitution, which was submitted by the assembly to the president on 3 November and enacted on 26 November 1949, struck a delicate balance. It proposed that the Supreme Court would have one chief justice and “not more than seven judges,” though the parliament could prescribe a larger number in the future. A judge would hold office until he or she attained the age of 65. Every judge would be “appointed by the president … after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.” The document proposed that, “in the case of appointment of a judge other than the chief justice, the chief justice of India shall always be consulted.”
DURING JAWAHARLAL NEHRU’s time as prime minister, until the mid 1960s, the executive and the judiciary maintained a spirit of cooperation, viewing themselves as guardians of the constitution. This rapport helped the government steer through several thorny issues, including that of the validity of the very first amendment to the constitution.
The amendment imposed restrictions to, among other rights, the right to property. Though the constitution had enshrined the right to property as a fundamental right, the government found that it could not initiate agrarian reforms without the abolition of the zamindari system, whereby wealthy landowners collected taxes from peasants who worked on their lands. When states began to pass laws abolishing this system, the head of the Panchkot Raj family, which had for centuries ruled areas that now fall in Jharkhand and West Bengal, approached the Supreme Court. In its 1951 judgment in the Sri Sankari Prasad Singh Deo vs Union of India case, a five-judge bench headed by the chief justice unanimously ruled that the parliament had the power to amend the constitution, without any exception.
The question of the constitutional validity of an amendment next came up before the Supreme Court in 1964, in the case of Sajjan Singh vs State of Rajasthan. Nehru had died five months earlier, and the Congress, while still holding a clear majority in parliament, had fallen to 361 seats in the Lok Sabha—then its lowest tally. The question before the Supreme Court again pertained to the right to property. Six petitioners from Rajasthan were disaffected by the provisions of the 17th constitutional amendment, which allowed the state to take “estates” away from individuals who owned more land than was permissible by law.
The court’s answer, in effect, was the same—the majority opinion of the five-judge bench, led by the then chief justice, PB Gajendragadkar, dismissed the petitions. But two judges, M Hidayatullah and J Mudholkar, expressed doubts over the reasoning of the Sankari Prasad judgment. One line in Hidayatullah’s dissenting opinion stuck out. “The Constitution gives so many assurances in Part 3,” he wrote, “that it would be difficult to think that they were the play things of a special majority.” In his dissenting opinion, Mudholkar was the first judge to raise the question of whether there were some aspects of the constitution that should remain beyond parliament’s powers to amend. “It is also a matter for consideration,” he wrote, “whether making a change in the basic features of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution.”
Beginning with this judgment, two strands of judicial reasoning emerged that evolved over successive judgments in the following years. One strand repeatedly upheld the parliament’s powers to curtail the right to property, and allowed the government to compulsorily acquire land; the other, perhaps more foundational—and countervailing—strand, fortifed the fundamental rights of citizens against curtailment by the government.
A third major confrontation between the parliament and the judiciary took place in 1967, when the Supreme Court once again considered the constitutionality of the 17th amendment, in the case of IC Golak Nath vs State of Punjab. Austin famously wrote that while the earlier confrontations were “skirmishes,” the third was a “great war.” The jurist Upendra Baxi, whom I met in January, played down this vocabulary. “The parliament, aware of what it needs, makes laws,” Baxi told me. “They use certain words to convey their intention on paper. And words have their own meaning. That meaning is subject to interpretation. So let’s not call it a fight—it is more nuanced than that.”
By a narrow majority of six judges to five, the bench decided against striking down the amendment, but declared, “Fundamental Rights cannot be abridged or taken away by the amending procedure.”
During this time, relations between the judiciary and Prime Minister Indira Gandhi’s executive grew considerably strained. In several judgments in 1970, the Supreme Court halted Indira’s attempts to nationalise banks, and annulled her abolition of privy purses. That same year, a man named Kesavananda Bharati, the head of a Hindu monastery in Edneer, Kerala, moved the Supreme Court against the government’s attempts to acquire land belonging to the monastery, under the Kerala Land Reforms Act, 1963.
Several similar petitions were batched together for hearing in the case of Kesavananda Bharati vs State of Kerala. A five-judge bench admitted the petitions, and then referred the case to a 13-judge bench, since the court would have to reconsider the opinion in the Golak Nath case, which had been decided by an 11-judge bench.
Accounts of the case by people close to it are steeped in the politics of the time. TR Andhyarujina, then a junior of HM Seervai, an eminent lawyer who represented the state of Kerala in the case, maintained a diary through the proceedings, based on which he later published a book. The book recounted that the government made efforts to appoint the “right” kind of judges to the bench, to get the result it desired. According to the book, SN Dwivedi, whose elevation from the Allahabad High Court the government cleared just days before arguments began in the case, had openly said that he was going to Delhi to get the Golak Nath verdict overruled.
On 24 April 1973, the Supreme Court held by a slim margin of 7-6 that while the parliament has “wide” powers, it did not have the power to destroy what it described as the “basic features,” or the “basic structure,” of the constitution, which, according to the judgment, included the republican and democratic form of government; the secular and federal character of the constitution; and the dignity of the individual, secured by the various freedoms and rights guaranteed by the constitution. The bench did not object to the parliament’s power to curtail the right to property, but it struck down parts of certain previous constitutional amendments that sought to bypass the court’s power of judicial review. A summary of the judgment recorded the majority view, and was signed by nine judges of the bench. The summary quoted a line from the conclusion of Khanna’s concurring opinion: “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.”
It was a complex and intricately reasoned judgment, with 11 separate opinions. Upendra Baxi predicted, in a paper published in 1974, that, “for a long time to come the Indian judiciary, constitutional scholarship and, above all, the Indian polity are likely to be consumed by the magnificent obsessions created by the 11 opinions of the Supreme Court.” He predicted that the judgment could become, “in some sense, the Indian Constitution of the future.” But even “a limited analysis of what the court decided,” he wrote, “is as delicate and difficult as that directed to the unravelling of the significance of the smile of Mona Lisa.”
INDIRA GANDHI’s government acted immediately and aggressively after the Kesavananda verdict. The morning after that judgment, the news was announced on All India Radio that the next chief justice of India would be AN Ray. At that time, Ray was the fourth most senior judge at the Supreme Court. JM Shelat, KS Hegde and AN Grover, the judges who had been superseded in the appointment, had all been on the Kesavananda bench, and had taken the majority position.
The norm of seniority, according to which the senior-most judge at the Supreme Court is elevated to the position of chief justice, is not laid down in the constitution, but it had been deemed sacrosanct by precedent. After the death of HJ Kania, the first chief justice, Nehru considered overlooking Patanjali Shastri, who was the senior-most judge on the court. He quickly gave up the idea after all the six judges of the Supreme Court declared that they would resign if the seniority norm was not adhered to. Twenty-two years later, when Indira Gandhi superseded them, Shelat, Hegde and Grover resigned in protest.
That same year, the politician and Indira loyalist Mohan Kumaramangalam argued in a speech in parliament that the government had to make an assessment of the political philosophy of a judge during the appointment process. “In appointing a person as chief justice,” he argued, “I think we have to take into consideration his basic outlook, his attitude to life, and his politics. We, as a government, have a duty to take the philosophy and outlook of a judge into account.” But it was evident that the government’s intention was to warp the judiciary to fit its own ends.
Two years later, in 1975, Indira’s government proclaimed the Emergency after the Allahabad High Court annulled her victory in the 1971 Lok Sabha election. Across the country, people who had, after the proclamation, been arrested without due procedure approached high courts for relief. Many of them were Indira’s political opponents. Nine high courts ruled that, even during an Emergency, courts had the jurisdiction to examine whether detentions were in keeping with a procedure established by law. The state governments and the central government appealed these decisions before the Supreme Court, which examined the question in the case of ADM Jabalpur vs Shiv Kant Shukla.
Niren De, then the attorney general, argued in the chief justice’s courtroom that during the Emergency, “liberty,” guaranteed to every individual by Article 21 of the constitution, was suspended. HR Khanna, one of the judges, asked De, “Life is also mentioned in Article 21. Would government arguments extend to it also?” De’s reply was chilling: “Even if life was taken away illegally, courts are helpless.”
Four judges, including Chief Justice Ray, agreed with De. The majority judgment, one of the darkest events of the court’s history, held that while the Emergency was in force, “no person has any locus standi to move any writ petition … to challenge the legality of an order of detention.” One judge, Hameedullah Beg, observed about detentions during the Emergency: “The care and concern bestowed by the state authorities upon the welfare of detenues who are well housed, well fed and well treated, is almost maternal.”
Khanna was the lone dissenter. While his four colleagues held that the government’s jailing of hundreds of its political opponents without trial was “legal,” Khanna, citing the legal scholar Wolfgang Friedman, wrote, “in a purely formal sense, any system of norm based on a hierarchy of orders, even the organised mass murders of Nazi regime, qualify as law.” In a famous editorial published in April 1976, the New York Times noted, “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice HR Khanna of the Supreme Court.”
Before leaving for the court on the morning that the ADM Jabalpur judgment was delivered, Khanna had told his sister, “I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.” He was right. In 1977, after Ray retired, though Khanna was the senior-most judge of the court, the government appointed the next senior-most judge, Beg, as the chief justice. Khanna resigned immediately.
In 1977, in the aftermath of the Emergency, the Congress party was defeated in a general election for the first time since Independence. In the years that followed, the Supreme Court moved to repair some of the damage that Indira had done to the judiciary during her time in power. Most significantly, in 1980, in the Minerva Mills vs Union of India case, the court repealed sections of the 42nd amendment, introduced by Indira, which sought to limit the court’s power of judicial review over the constitutional validity of laws. The court now invoked the “basic structure” doctrine to restore its jurisdiction over such matters.
But by the time of the judgment in the Minerva Mills case, Indira was already back as prime minister. PN Bhagwati, who was next in line for the post of chief justice, wrote a fawning letter to her, sending his “heartiest congratulations” on her “resounding victory in the elections” and her “triumphant return as prime minister of India.”
On her return to power, Indira resumed her attempts to take control of the judiciary by packing it with judges favourable to her. Across the country, high courts were filled by additional judges, whose terms, as mandated by the constitution, lasted two years. But Indira’s government began a practice of appointing these judges for terms of a few months. Her law minister also sent a circular to several chief ministers across the country, seeking the “consent” of additional judges in their states to be appointed to different high courts in the country “to further national integration.” In a public lecture in 1982 at the University of Bombay, the eminent lawyer Nani Palkhivala said that the combination of uncertain tenure and location left judges insecure about their future, and thus nervous about taking any stand against the government.
The validity of the circular and other questions of judicial appointments and transfers were considered in the case of SP Gupta and others vs President of India, heard by a seven-judge bench of the Supreme Court. In its judgment, the bench also considered the fundamental question of where the power to appoint judges lay. It noted that Ambedkar had rejected the idea of granting the chief justice veto power over appointments, but that “primacy is intended to be given to the advice that would be tendered by the Chief Justice of India to the President.” But this primacy “is not to give power to veto any proposal,” the judgment noted, “nor would giving such primacy to his advice mean that the Chief Justice of India would be enjoying unfettered arbitrary powers.”
The bench held that if the chief justice’s advice had “proceeded on extraneous or non-germane considerations,” it could be “subject to the judicial review just as the President’s final decision is so subject if he were to disregard the advice of the Chief Justice of India unless the same is justified for cogent and convincing reasons.” It also held that while the president’s consultation with the chief justice had to be “full and effective,” it was not to be equated with “concurrence.” In effect, the chief justice’s recommendation was not to be binding on the president. The judgment, which upheld the validity of the circular, thus gave the executive primacy in the matter of judicial appointments.
After the case, which came to be known as the First Judges Case, the government continued using transfer and appointment policies that furthered its own interests. As the journalist Prabhu Chawla noted in India Today in 1985, Mohan Lal Srimal was elevated as chief justice of the Sikkim High Court, superseding 40 judges; Dambarudhar Pathak was moved to head the Orissa High Court, superseding 25 senior judges; and Govardhan Lai Jamnalal Oza was first made the acting chief justice and then confirmed as chief justice in the Madhya Pradesh High Court, superseding five senior judges.
The government’s hold over the judiciary continued after Indira’s death, when her son Rajiv took over as prime minister. In 1985, a three-judge bench of the Supreme Court accused the Rajiv government of filling the high courts with “sycophant judges.” Chawla noted that “the Government was violating its own guidelines by permitting junior judges to act as chief justices in at least 10 high courts for over a year in 1981-82.” According to Chawla’s story, 32 of the preceding 53 high-court appointments had been made by acting chief justices. “The message was clear,” he wrote. “Keep a judge in an acting position so that he concurs with the government’s recommendations on appointments to the bench in the hope of getting confirmed himself.”
Unease within and over the judiciary boiled over in 1990, as noted by an India Today report. In the last week of April, two judges of the Bombay High Court, Sharad Desai and Madhukar Kenia, began trading charges of blackmail and corruption against each other. Days later, a government audit report accused V Ramaswami, a Supreme Court judge (the same judge Sibal would defend in 1993, with Khehar’s help), of misusing public funds during his tenure as chief justice of the Punjab and Haryana High Court. In Patna, lawyers agitated over the transfer of a senior judge in the city, PS Mishra, days after Chief Minister Lalu Prasad Yadav declared in a public meeting that “some judges would be sent out of state.”
The idea of a judicial selection commission had begun to be discussed by this time. A bill proposing such a commission was introduced in parliament in 1990, though it was not passed. “What we need to do is devise alternative mechanisms to deal with the problem,” Soli Sorabjee, then the attorney general of India, told India Today. “After all, a judge, like Caesar’s wife, must be above suspicion.”
It was in this atmosphere, with trust in the judiciary greatly eroded, and the executive seeking to assert greater control over it, that a three-judge bench at the Supreme Court suggested that a larger bench be constituted to review the decision passed in the First Judges Case. A nine-judge bench at the Supreme Court was constituted for the purpose, and set its focus on a specific question: what did the framers of the constitution mean when they wrote that the Chief Justice of India should be “consulted” by the president before making an appointment?
The majority opinion in what came to be known as the Second Judges Case, written by JS Verma, concluded that the provision for consultation actually meant a requirement of concurrence. “The collective wisdom of the constitutional functionaries involved in the process of appointing superior Judges is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry,” Verma wrote. “It is not unlikely that the care and attention expected from them in the discharge of this obligation has not been bestowed in all cases.”
Verma noted that it was agreed upon in the constituent assembly that appointments “should not be left to the absolute discretion of the executive.” He argued that the provision of consultation “was introduced because of the realisation that the Chief Justice is best equipped to know and assess” a candidate for judgeship.
The judgment accorded the Chief Justice of India primacy in the appointments process, though their decision would have to be taken after discussing candidates with other senior judges of the court—who would form a “collegium.” The collegium would recommend names to the president, who, with the help of cabinet ministers, would review the names. If the executive found a recommended person unsuitable, it would communicate its reasons to the chief justice. But the chief justice would have the power of reiterating a name, at which point the president would be bound to clear the appointment.
With some modifications in a subsequent judgment, in 1998, in what came to be known as the Third Judges Case, the collegium system of appointments lasts to this day. At the heart of Verma’s judgment was an assumption that corruption in the judiciary would end once the executive’s role in the appointments process was reduced to a minimum.
In September 2009, 16 years after Verma’s judgment, Prashant Bhushan asserted in an interview that “half of the last 16 chief justices have been corrupt.” Harish Salve, a former solicitor general, filed a case of contempt of court against Bhushan.
After Salve filed the case, Bhushan filed a supplementary affidavit in the Supreme Court, reiterating the difficulty of collecting evidence to support his claim, since no investigation was allowed against the judges—even the filing of an FIR required the prior permission of the chief justice.
In the past two decades, questions have been raised about the conduct of several chief justices of India. The twenty-first chief justice, Ranganath Misra, as a judge of the Supreme Court, presided over a commission of inquiry into the pogroms against Sikhs in 1984 that exonerated several Congress leaders against whom evidence has emerged in subsequent investigations. After his retirement, the Congress nominated Misra to the Rajya Sabha. The twenty-sixth chief justice, AM Ahmadi, quashed the charge of culpable homicide in the criminal case arising from the gas leak at a Union Carbide plant in Bhopal. After his retirement, the judge became the lifetime chairman of a hospital trust set up with funds raised by selling shares of Union Carbide India Limited. Activists in Bhopal raised allegations of irregularities in the trust’s functioning under Ahmadi. According to Frontline, the senior lawyer Ram Jethmalani alleged that the twenty-ninth chief justice, AS Anand, “had misused his office in a case involving some of his family members, relating to a land dispute with the Madhya Pradesh government.”
By this time, Verma had already raised concerns about the effects of the judgment in the Second Judges Case. In an interview with Frontline in 2008, he said that the judgment was “very much misunderstood and misused.” The general impression “within the judiciary is that there is arbitrariness in the exercise of powers by the collegium,” he said.
Weeks after Bhushan’s interview, his father, the lawyer and former law minister Shanti Bhushan, filed another affidavit in the Supreme Court, backing his son’s claims. “Make me a party along with Prashant Bhushan,” he told the court. “I will consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary.”
The case has since been on the back-burner. But other allegations surfaced over the years, of judges indulging in corruption, personal vendettas and nepotism.
In one prominent instance, news reports claimed that relatives of KG Balakrishnan, who succeeded Sabharwal as the chief justice, owned assets beyond their means. At a hearing in February, the Supreme Court directed the government to file a response to a plea by the NGO Common Cause seeking an investigation into the matter.
In October 2008, the elevation of AP Shah to the Supreme Court was blocked by the Supreme Court collegium. The journalist Kuldip Nayar wrote in 2010 in Sunday Times, a Sri Lankan paper, that even though four members of the collegium approved Shah’s name, the fifth, SH Kapadia, blocked it because Shah “had dared to cross Justice Kapadia’s path when the two were on the bench of the Bombay High Court” some years earlier. “He is said to have closed the discussion with the remark that the elevation would be over his dead body,” Nayar wrote.
In another instance, in 2013, Altamas Kabir, who had heard the contempt case against Bhushan, was accused of promoting his sister to judgeship in the Calcutta High Court, and actively blocking the promotion of another judge who raised an objection to this.
In a public lecture in 2011, Ruma Pal, a former judge of the Supreme Court, listed seven “sins” of the judiciary: hypocrisy, secrecy, plagiarism, prolixity, arrogance, nepotism and a tendency to “brush things under the carpet.” According to Pal, these sins had necessitated the “need for an effective mechanism for enforcing judicial accountability.”
Even as these problems persisted, tensions once again began to rise between the Supreme Court, and the executive and the legislature, over the question of the extent of judicial powers. They flared up prominently over the court’s pronouncements on the illegitimacy of the Chhattisgarh militia group Salwa Judum, and on the allocation of natural resources in the 2G scam case.
In the Salwa Judum case, in July 2011, the court stated that the root of the problem in Chhattisgarh lay in the state’s “amoral” economic policies and the “culture of unrestrained selfishness and greed spawned by modern neo-liberal ideology.”
In the 2G case, the court directed the government to revise the base price of the allocation and suggested that an auction would have been a preferable method of allocation, instead of the allotment of licences on a first come, first served basis.
In April 2012, the government filed a presidential reference before the Supreme Court, seeking clarification on some aspects of the 2G judgment. A five-judge bench of the court held in September 2012 that “auctions are not the only permissible method for disposal of all natural resources across all sectors and in all circumstances.” Such a decision was part of economic policy and “not a constitutional mandate” that had to be adhered to without exception, the court said.
But Khehar, who had been elevated to the Supreme Court a year earlier, held in a concurring opinion that “no part of the natural resource can be dissipated as a matter of largess, charity, donation or endowment, for private exploitation. Each bit of natural resource expended must bring back a reciprocal consideration. … One set of citizens cannot prosper at the cost of another set of citizens, for that would not be fair or reasonable.” He also seemed to wonder about why the reference had been made at all, stating that the court’s clarification “would give the erroneous impression that it is not necessary to dispose of the natural resources by way of auction. Surely, the presidential reference has not been made to seek such an innocuous advice.”
Further, he took “judicial notice” that “allotment of natural resources is an issue of extensive debate in the country, so much so, that the issue of allocation of such resources had recently resulted in a washout of two sessions of Parliament.” He added, “If one were to accept the allegations appearing in the media, on account of defects in the disposal mechanism, private parties have been beneficiaries to the tune of lakhs of crores of Indian Rupees, just for that reason. In the current debate, rival political parties have made allegations against those responsible, which have been repudiated with counter allegations. This Court is not, and should never be seen to be, a part of that debate.”
Towards the end of 2013, the Congress tabled a bill in the Rajya Sabha to set up a judicial appointments commission. It had the support of the opposition BJP. Arguing in favour of the commission, the BJP leader Arun Jaitley appeared to refer to the Supreme Court’s Salwa Judum judgment critically. “I have seen a judgment delivered about a year ago,” Jaitley said. “It was a subject matter of great debate whether economic liberalisation … of post-1991 is good or whether you must have liberalisation or not to have liberalisation. It is a subject matter of this House. The Supreme Court of India cannot have an economic philosophy.”
The only leader who opposed the bill was the lawyer Ram Jethmalani—by then also a parliamentarian—who called it “useless” and “unconstitutional.” “If passed,” Jethmalani said, “it will be set aside by the Supreme Court because it interferes with the basic feature of the constitution.”
THE NARENDRA MODI GOVERNMENT locked horns with the judiciary over the question of appointments even before it passed the NJAC Act. In June 2014, a month after the government came to power, the Supreme Court collegium, headed by Chief Justice RM Lodha, recommended four names for appointment to the Supreme Court: Rohinton Nariman, Arun Mishra, Adarsh Kumar Goel and Gopal Subramanium.
As per the existing procedure, the government conducted background investigations on the proposed candidates through its intelligence agencies. For the first time since the introduction of the collegium system, the government sent a name back to the collegium. It asked that Subramanium’s appointment be reconsidered.
Subramanium withdrew his name from consideration and, in a letter addressed to Lodha, alleged that he was being targeted for displaying “independence and integrity” when he assisted the court twice in a case involving the 2005 encounter killing of Sohrabuddin Sheikh in Gujarat, then ruled by Narendra Modi. Amit Shah, Gujarat’s former minister of state for home affairs, was facing legal scrutiny in the case—and on Subramanium’s suggestion, the Supreme Court had barred Shah from entering Gujarat in 2010; he was allowed to return only two years later. In his letter, Subramanium said he was “sorry that the Supreme Court did not stand by me.”
“See, our prime minister is someone who has been on the wrong side of the judiciary,” a senior advocate in the Punjab and Haryana High Court told me. “So he understands the importance of judges—from the trial court to the Supreme Court.” He pointed out that, in 2012, when the Supreme Court-appointed special investigation team filed a closure report declaring that it had not found prosecutable evidence against Modi in the 2002 Gujarat pogrom, “there was a three-day function in Gujarat as a sort of the thanksgiving. So whatever facade he maintained outside, it was clear that he was hit hard by the judicial intervention in that matter.” (Zakia Jafri, the wife of the former MP Ehsan Jafri, who was killed in the riots, filed a review petition against the decision of the lower court to accept the SIT’s report; her petition is pending before the Gujarat High Court.)
Within three months of the Modi government coming to power, the NJAC Act was passed in both houses of parliament. By the end of 2014, it was ratified by 16 state legislatures and signed by the president.
The act proposed a six-member body to oversee the appointments and transfers of judges. The commission was to be headed by the Chief Justice of India, and its members were to be the second and third most senior Supreme Court judges, the law minister, and two “eminent persons” who would be appointed by a panel comprising the chief justice, the prime minister and the leader of the opposition. One of the two eminent persons would be either a woman or a member of a minority community, scheduled caste or scheduled tribe.
The act came into force in April 2015. That same month, the Supreme Court admitted a batch of petitions, including one filed by the Supreme Court Advocates On Record Association, challenging the constitutional validity of the NJAC. A five-judge bench led by Khehar began hearing arguments on 27 April.
The government argued that the NJAC would restore the constitutional mandate of checks and balances that, it claimed, was disturbed in 1993 by Verma’s judgment. The attorney general, Mukul Rohatgi, emphasised that earlier drafts of the constitution presented in the constituent assembly had suggested that a panel be appointed to oversee the appointments process. He argued that Ambedkar had advocated the executive’s participation in judicial appointments. The word “consultation” in the constitution, Rohatgi said, could not possibly have meant “concurrence.” The government also put forth other arguments, among them that in the collegium system the independence of judges depended on their conscience, and nothing else; and that the Supreme Court had acted as a “third house of the parliament” while passing the judgment in the Second Judges case. It even criticised the judiciary for failing to grant relief to the victims of the communal riots of 1984 and 2002.
Dushyant Dave, arguing in favour of the NJAC, focussed his submissions on the image of the judiciary in the eyes of the public. “My lords should wear a burqa and roam in the court corridors to hear the way lawyers talk about the judges of this court,” he said. “You will get a first-hand account of the rotting justice-delivery system. The kind of lawyers who are being appointed as judges is a disgrace.”
Ram Jethmalani was one of the lawyers arguing for the petitioners. He said that the NJAC Act was an effort to “subdue the judiciary” because the Modi government saw it as an obstacle to the implementation of its policies. He pointed out that the act was passed in both houses of the parliament without any substantial discussion on its merits—“because of the universal bias entertained by the legislature, against the judiciary.” The power the law minister wielded as the representative of the executive, Jethamalani argued, could lead to appointments being decided just on the basis of the minister’s vote. “Beware of all politicians at all times,” he said, quoting the American journalist HL Mencken, “but beware of them most sharply when they talk of reforming and improving the constitution.”
Anil Divan, also appearing for the petitioners, argued that the court had to take into consideration prevailing sociopolitical conditions while considering the merits of the NJAC Act. By October 2015, when the judgment was to be delivered, the Modi government had filled high positions in more than a dozen public institutions with eminently unqualified RSS ideologues. “It was a tricky situation for the bench,” a senior lawyer at the Supreme Court told me. “Surely a reform of the appointments process was in order, but the NJAC brought in government interference, which the court has been suspicious of ever since the Emergency. And this NDA government looks more like the Congress of the seventies than the Congress party itself.”
On 16 October, the bench voided the NJAC Act in its entirety, invoking the basic structure doctrine. Baxi, who in 1974 predicted that the Kesavananda judgment could become, “in some sense, the Indian Constitution of the future,” told me when I met him in December that “Kesavananda is the constitution now.”
Khehar, writing the majority judgment, said that the matter of appointments had been reviewed by constitution benches at the court several times in the past, and that the primacy of the judiciary had been well established as a constitutional norm. The government’s power to turn down a candidate on reasonable grounds, laid down in the memorandum of procedure, or MoP, Khehar argued, did allow the executive to participate in the process. “It is also not possible for us to accept,” he wrote, “that the judgment in the Second Judges case has interfered with the process of selection and appointment of Judges to the higher judiciary by curtailing the participatory role of the executive in the constitutional scheme of checks and balances.”
Khehar emphasised that Ambedkar had “rejected both the systems, where appointments to the higher judiciary were made by the executive, as well as by the legislature. Dr BR Ambedkar therefore, very clearly concluded the issue by expressing that it would be improper to leave the appointments of Judges to the Supreme Court, to be made by the President, on the aid and advice of the Council of Ministers, headed by the Prime Minister.” Given that Ambedkar had made this clear, Khehar concluded, the use of the word “consultation” in the constitution, where it recommended consultation with the chief justice and other judges, could not be read as carrying its “ordinary dictionary meaning.”
As to Ambedkar’s reservations about handing a veto on appointments to the chief justice, Khehar reiterated that the procedure laid down in the Second and Third Judges Cases was a participatory process between the two arms of the state. “We are satisfied that the entire discussion and logic expressed during the debates of the Constituent Assembly, could be given effect to by reading the term ‘consultation’ as vesting primacy with the judiciary, on the matter being debated,” he wrote.
Khehar also appeared to cast doubt over the robustness of civil society in the country. “An important issue,” he wrote in the conclusion of his judgment, “that will need determination before the organic structure of the Constitution is altered in the manner contemplated by the impugned constitutional amendment, would be whether the civil society … would be a deterrent for any overreach, by any of the pillars of governance? At the present juncture, it seems difficult to repose faith and confidence in the civil society, to play any effective role in that direction.”
He then quoted the senior BJP leader LK Advani, who had said, in June 2015, that the Emergency could happen again. “His views were dreadfully revealing,” Khehar observed. “In his opinion, forces that could crush democracy, were now stronger than ever before.”
He also noted that since the NDA government had come to power, the governors of 13 states and a lieutenant governor of a union territory had resigned. “A large number of persons holding high positions in institutions of significance, likewise resigned from their assignments, after the present NDA Government was sworn in,” he wrote. There appeared to be a system of spoils and patronage in place, he added, “wherein the political party which wins an election gives Government positions to its supporters, friends and relatives, as a reward for working towards victory.”
EVEN WITH THE NJAC ACT struck down, few had faith in the collegium system. In his dissenting opinion in the NJAC case, Chelameswar had called for a “comprehensive reform of the system,” saying that “proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.”
The former member of the higher judiciary told me that “there are no official meetings of the collegium.” According to this judge, “how this works is that they discuss prospective names wherever they meet.” The chief justice “discusses it one-on-one with other members of the collegium and there is no list that is prepared—nothing is on paper,” the former judge said. “And there is no scrutiny of judgments written by these prospective candidates—I mean they can’t show one instance when judgments of a person were examined by members of the collegium before that person is elevated to the Supreme Court. It is never done.”
I asked the former judge what the collegium took into consideration when appointing a candidate.
“They just talk, you know—somebody says that x is a good person,” the former judge replied. “That is all. They go by impressions. When a name is brought up, they consider what they recall about that name.” The former judge described it as a “barter system of appointments—give and take. One member of the collegium would say, ‘All right, I agree with your names but you add this particular name to the list.’ On the other hand, and this is how personal vendettas come in, one member could say, ‘I would agree with the other names if you take this one name out.’”
“I mean this is a farce, this whole collegium business,” the former judge said.
Khehar’s direction to the government to formulate a new MoP to appoint judges suggested that he recognised there were problems with the collegium system. Many senior Supreme Court advocates I spoke to also suggested that this was Khehar’s way of showing “statesmanship” after striking down a constitutional amendment.
But the following year was marked by deep hostility from the ruling BJP government towards the judiciary. Tensions escalated in May, when the court, hearing a dispute over BJP legislators’ alleged attempts to topple the Congress government in Uttarakhand, stated that a “floor test should be conducted under the supervision of this Court.” The floor test was won by the Congress’s Harish Rawat, who had called the entire controversy a “systematic attempt by the BJP to topple governments headed by the Congress in various states.”
The same day that judgment was delivered, Finance Minister Jaitley, speaking in the Rajya Sabha in the context of the Goods and Services Tax Bill, urged legislators not to hand over budgetary and taxation powers to the judiciary. “For heaven’s sake, I beseech you in the interest of Indian democracy not to go on this misadventure,” he said. “With the manner in which encroachment of legislative and executive authority by India’s judiciary is taking place, probably financial power and budget-making is the last power that you have left.”
“Step by step, brick by brick, the edifice of India’s legislature is being destroyed,” Jaitley said.
But even as the Supreme Court sought a compromise in the form of a revised MoP, the executive was in no mood to yield ground. The cabinet insisted on introducing a clause that would enable it to block the appointment of a judge on the basis of “national security”—which seemed an echo of Indira Gandhi’s idea of transferring judges in the name of “national integration.” Just like Kumaramangalam, Ravi Shankar Prasad denied that there were any attempts to subvert the judiciary. “For the government of Prime Minister Narendra Modi, the independence of judiciary and respect for it is an article of faith,” Prasad said in July. At the time this story went to press, the new MoP had not been finalised.
TOWARDS THE END OF 2016, Khehar was on a bench that was hearing a petition filed by the NGO Common Cause to set aside the appointment of KV Chowdary as the Central Vigilance Commissioner. Among the many objections the petition raised was the fact that Chowdary, as the head of the income-tax department, had not probed documents found during a search of the offices of Hindalco Industries, owned by the Aditya Birla Group, and a raid at the Delhi and Noida offices of the Sahara India group. The documents contained lists of transactions that suggested money was paid by the two companies to several prominent politicians—including Modi, who was allegedly referred to in Sahara logs as “Modiji” and “CM Gujarat.”
At a hearing on 25 November, a bench of Khehar and Arun Mishra said that it had not found the evidence satisfactory. “Are you relying on Sahara’s documents?” Khehar asked Prashant Bhushan, who was arguing for the petitioners. “They never have genuine documents.” On the logs showing payments to the politicians, the bench said, “Anybody can make a computer entry against a chief minister or prime minister. Can we order a probe based on all that? Bring better material.” Bhushan asked for three weeks’ time to produce more evidence.
On 14 December, Bhushan told the court that he had obtained an appraisal report of the income-tax department that analysed the materials seized in the raids. The evidence showed, Bhushan said, that officials in the tax department had also been bribed. He asked for more time to file a supplementary affidavit.
The bench called the request “unreasonable” and gave Bhushan one more day to file the affidavit. “It is a matter of burning midnight oil for one night today,” Khehar told Bhushan. “Finish it today and file it tomorrow. We will hear it day after.”
“What is the tearing hurry?” Bhushan asked the bench.
“The hurry is that you are dealing with high constitutional functionaries,” Khehar replied. “The more this is kept pending, the more it will become difficult for the people you have cast aspersions on to function.” On 16 December, Bhushan said he had not been able to examine the two volumes of the appraisal report and asked for more time. The bench rejected his request. Khehar told Bhushan that he was making “serious allegations in a non-serious matter,” with nothing to prove his claims.
Then, Bhushan said that Khehar had a possible conflict of interest in hearing the matter. “It is my duty as an officer of the court to point out that your lordship’s file for elevation as CJI is pending before the government,” Bhushan said. Since Prime Minister Modi, who would have to clear his appointment, was named in the seized documents, Bhushan asked Khehar to recuse himself. “It is very unfair on your part to raise the issue now,” an upset Khehar replied. “If you have no confidence in me then you should have said so earlier when the matter was being heard. The matter was heard on two dates, but why are you raising the issue now?”
Arun Mishra agreed with Khehar. “Do you think we can succumb under any pressure?” he asked Bhushan. “You are talking about the highest court of the land and doubting the constitutional authority. Do you think we, as constitutional functionaries, can be affected by all this? What are you trying to say? It is my personal opinion that it is contempt.” Arguing for the centre, Rohatgi termed Bhushan’s statement the “cheapest tactic.”
“It is not a fair request but you go to any other bench you want,” Khehar told Bhushan. “I don’t want to hear this matter anymore.”
In a critique of the judgment published by the Economic and Political Weekly in March 2017, the journalist Vijay Simha wrote of “strands of a chilling nature” that raised questions about the role of the judges who heard the case. The article pointed out that Arun Mishra’s appointment was cleared after the Modi government came to power, despite the collegium having overlooked his name twice before. According to the article, Mishra was elevated because of his “proximity or otherwise to a right-wing NGO that treats the BJP as its political wing.”
The article also pointed out that, in December 2016, Mishra’s nephew’s wedding reception in Gwalior had been attended by the chief minister of Madhya Pradesh, the BJP’s Shivraj Singh Chouhan. The documents seized from Sahara also had an entry showing a payment of Rs 10 crore to “CM MP.” Another reception for Mishra’s nephew was held in Delhi, where Rajnath Singh, Arun Jaitley, Vasundhara Raje and other BJP politicians were present.
Khehar, too, was at that event. “Justice Khehar saw that a large number of politicians and ministers from the ruling party, as also the Congress party and others were present,” Dave told the website Bar and Bench. “Once you see that the judge has amongst his friends these top politicians, the CJI had to be circumspect and not assign the Sahara-Birla case to a bench presided by that judge.”
“It was so serious that it demanded a five-judge bench of the senior-most judges of the Supreme Court to hear it,” Dave continued. “However, as is evident from the judgment in that case, the approach of the judges shows that they have neither appreciated the seriousness of the matter nor have they really understood the legal position; they have completely forgotten their constitutional obligation.”
Dave also drew comparisons between the court’s handling of Pul’s alleged suicide note and of the Sahara-Birla papers. “Regrettably one gets an impression that on one hand state government and central government were not taking any action on the suicide note, and on the other hand Supreme Court was deciding the Sahara-Birla matter, giving clean chit to alleged recipients from across political spectrum,” he told Bar and Bench. “This is a very complex but curious coincidence. The existence of the suicide note and its seriousness were within the knowledge of the concerned persons.”
The matter was heard later by a bench of Arun Mishra and Amitava Roy on 11 January, which dismissed the appeal for an investigation into the documents. AP Shah later wrote a letter to the Central Board of Direct Taxes on behalf of the Citizens Whistle Blower Forum, an activist group, asking for an investigation into the alleged payoffs. Bhushan has also raised several questions about the case in an article for the website The Wire. No administrative action has yet been taken on the matter.
The same day that Mishra and Roy disposed of the Common Cause petition, according to The Hindu, the Supreme Court “refused to examine a petition alleging dilution in the Whistleblower Protection Act and seeking interim measures to protect whistleblowers who expose corruption in public administration and governance.” The paper reported that “the tone of the court hearing was in complete contrast to the earlier hearing in January 2016, when the apex court had pressed the Centre to put in place a fool-proof interim mechanism to receive complaints and protect the lives of whistleblowers till the law was enacted.” The court observed that “it was not possible for us to engage ourselves with the debate, at this juncture. At the present juncture, the issue being canvassed, is premature.” According to the Economic Times, it was “after months of testy ties, an easy week for government in Supreme Court.”
The change was apparent at the first public event attended by the prime minister and the newly appointed chief justice. Modi complimented Khehar’s “quick decisions,” and, according to the news agency IANS’s description of his comments, remarked that it “would have been good if Justice Khehar had continued to hold the position for some more time (beyond his tenure).” The prime minister’s comments were remarkably warm given how fiercely his government had criticised Khehar’s judgments earlier. Khehar, for his part, said, “We assure you that we will keep within our boundary.”
At the event, the chief justice, the prime minister and the finance minister also addressed the question of the courts’ backlog of cases, an issue Khehar has devoted significant attention to during his tenure. Modi and Jaitley both suggested the use of technology to expedite the process of litigation, the slow pace of which, in the latter’s words, was “eroding the public’s faith in the institution.” In response, Khehar suggested that “there could be a mechanism where some independent agency, maybe some retired judges or some professionals of eminence who you may choose at all level, whether it is the district court or the high court or the Supreme Court, to take a second call. And if we can just reduce ten per cent of those litigations, we will go the long way ahead. Again don’t take me wrong, it is not a matter of any criticism.”
Since then, some of the government’s actions appear to have shown scant regard for the spirit of the constitution. In March, it passed the Finance Bill—annual legislation that gives effect to the government’s financial proposals—in the Lok Sabha, where it holds a majority. Finance Minister Jaitley introduced, according to a report on the website Scroll, “30 pages of amendments to the government’s own bill text less than 48 hours before” the legislation was taken up by the Lok Sabha.
The bill made changes to 40 existing laws. It also made changes to a number of the country’s tribunals—quasi-judicial bodies, such as the National Green Tribunal, that adjudicate cases requiring technical expertise and specialisation. Jaitley axed eight tribunals, whose functions were absorbed by other tribunals, and empowered the government to set the rules regarding the appointment and removal of the judges and members of these tribunals. The issue of these appointments had been simmering since 2015, when the Gujarat High Court had raised concerns over the extent of the executive’s discretion in the process.
All the amendments proposed by Jaitley were adopted in the bill, and passed, without debate or discussion, as a money bill. Many aspects of the bill fell well outside the limits set by the constitution for money bills, which typically deal with financial matters. But the Lok Sabha speaker makes the final determination of whether a bill qualifies as a money bill. Since money bills do not require the assent of the Rajya Sabha, this allowed the government to bypass the upper house, where the BJP does not have a majority. The Rajya Sabha can propose amendments—but all four amendments that it recommended to the 2017 Finance Bill were rejected.
A bench led by Khehar heard a petition filed by the Congress leader Jairam Ramesh, who argued that the bill could not be classified as a money bill. The Congress politician, lawyer and former finance minister, P Chidambaram, representing Ramesh, argued that if the finance bill could be classified as a money bill, “There is a danger that every bill will be passed as a money bill.”
The attorney general argued that the judiciary had no jurisdiction to encroach on legislative procedure in parliament, and that the speaker of the Lok Sabha was the final authority in the matter. “If the speaker says blue is green, we will tell her that blue is blue and not green,” Khehar shot back. At the time this story went to press, the court was still hearing arguments on the petition.
Through the Finance Bill, Jaitley also expanded the scope of the use of Aadhaar, the government’s biometric identification system, making it mandatory for every individual to provide their Aadhaar number while filing tax returns. Since not paying tax is a punishable crime, the government, effectively, compelled every citizen to obtain an Aadhaar number.
The Biju Janata Dal leader Bhartruhari Mahtab confronted Jaitley over the issue in the Lok Sabha during the debate on the Finance Bill, saying, “you are forcing the citizens” to get Aadhaar numbers. “Yes we are,” Jaitley replied.
The move was in blatant defiance of previous Supreme Court orders. In August 2015, while dealing with a clutch of petitions challenging the validity of Aadhaar, a three-judge bench of the court passed an interim order that referred the issue of privacy raised in the case to a constitution bench. In that order, the court directed that “the production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen,” and that “the Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme”—the public distribution system that aims to ensure food security. The bench said that given the importance of the issue, “it is desirable that the matter be heard at the earliest.”
In October 2015, a five-judge bench added to the list of schemes for which the Aadhaar number could be used. But it reiterated its stand: “We will also make it clear that the Aadhaar card scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.” The bench also asked the chief justice, who was part of the bench, “to constitute a Bench for final hearing of these matters at the earliest.” It asked the attorney general to assure the court that Aadhaar would be a purely voluntary scheme, and said that if the government made it mandatory, it would be held in contempt of court. “No person will be denied benefits under any government scheme for want of Aadhaar card,” Rohatgi had assured the bench.
Nineteen months have passed since then, and the matter has not been heard. The government, meanwhile, has passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, also as a money bill, whose constitutionality has since been challenged by several petitions. Section 7 of the act made Aadhaar mandatory for availing a range of social benefits—from midday meals for schoolchildren to compensation for victims of the Bhopal gas tragedy.
The lawyer and writer Gautam Bhatia noted on his blog in January this year, “In light of the Government’s conduct over the last year and a half, the Court’s refusal to hear the case goes beyond ordinary situations of matters being stuck in the courts for long periods because of judicial backlog and pendency. Aadhaar is a classic case where the more the Court delays, the greater the Government’s ability to eventually present it with a fait accompli.”
A day after Khehar took oath, the senior advocate Shyam Divan mentioned the Aadhaar matter before the chief justice, asking for an urgent hearing. A three-judge bench headed by Khehar noted that linking Aadhaar to the opening of bank accounts had benefitted people. “Bank accounts are being opened using Aadhar. There is a positivity emerging out of the scheme,” Khehar said.
Divan argued that that there were serious issues of privacy at stake, and that there were great risks of the state placing citizens under surveillance. To this, Khehar replied, “Surveillance to what? Is it a big deal? Even I gave all my papers when asked for.” Divan’s request for a hearing was turned down.
In March, after the passage of the Finance Bill, Divan mentioned the matter before Khehar again, asking for an early and fixed date for a hearing so that the applications questioning the government’s actions could be heard. He told the bench that there had been three Supreme Court orders in the preceding three years clearly stating that “no person should suffer for not getting the Aadhaar card” and that people had to obtain it “voluntarily.” He pointed out that “court orders are being breached.”
“Interim orders are not the solution, disposal of this case is,” Khehar said. “We think this will have to go to a seven-judge bench. It is going to take us some time to spare seven judges.” He added that since Chelameswar, who headed the three-judge bench that referred the issue to a constitution bench, had other matters lined up before him, the Aadhaar case would have to wait. When Divan asked if he could mention the matter before Chelameswar, who was in another courtroom, and ask for an early hearing, Khehar instructed him against it. “You should not, he has already referred it to a larger bench,” he said.
In April, three petitions filed against the government’s move to link Aadhaar to tax returns—by Binoy Vishwam, a senior Communist Party of India leader, Bezwada Wilson, a Dalit rights activist, and SG Vombatkere, a retired army officer—came before a two-judge bench of AK Sikri and Ashok Bhushan.
“The petitioners’ understanding is that the state in India, under this constitution, has no right over their bodies,” Shyam Divan, arguing for the petitioners, said. “In a totalitarian state, an individual is just a number, but that is not the case in India. Indian constitution does not establish a totalitarian state. It is not a charter of servitude.” Calling the Aadhaar number an “electronic leash,” Divan said, “Nowhere in the world such number-tagging is done. It used to happen in concentration camps.” Did the state intend to “walk us around like a dog for the rest of our life?” he asked.
Over the course of his arguments against the petitions, the attorney general made several chilling statements. “There is no absolute right over the body,” he said at one point during the hearing. “If such a right existed, then committing suicide would have been permitted and people would have been allowed to do whatever they wanted with their bodies.” He also argued that the “right not to have bodily intrusion is not absolute, and the life of a person can also be taken away by following a due procedure of law.” At the time this story went to press, the court had not delivered a judgment. On 12 May, before a constitution bench presided over by Khehar, Divan mentioned the matter of Aadhaar being made mandatory for several additional government schemes. Khehar put the case up for hearing on 27 June, three days before the deadline that the government had laid down for people to provide their Aadhaar numbers to avail of the schemes.
In his concluding arguments for the petitioners in the case regarding Aadhaar’s use with tax returns, the senior advocate Arvind Datar evoked an ominous image. “As nightfall does not come at once, neither does oppression,” he said, quoting the American jurist William Douglas. “In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air, however slight, lest we become unwitting victims of the darkness.”