Chief Justice of India-designate Bhushan Ramkrishna Gavai has asserted that the “Constitution alone is supreme” and the judiciary would step in whenever the legislature or executive fails to discharge their duties, brushing aside Vice-President Jagdeep Dhankhar’s criticism of judicial “overreach”.
Speaking to The Telegraph, Justice Gavai said the three wings of democracy — the judiciary, legislature and the executive — have to work within the four corners of the Constitution.
“The statement that Parliament is ‘supreme’ is not a sound statement. Ultimately, it is the Constitution which is ‘supreme’. All three wings of democracy are supposed to act within the four corners of the Constitution without overstepping,” Justice Gavai said when asked about Dhankhar’s remark.
Dhankhar had also alleged that the Supreme Court was using Article 141 “as a missile” to quash policy decisions taken by the legislature. Article 142 vests the Supreme Court with extraordinary power and jurisdiction to pass any order, decree or judgment to render complete justice to the aggrieved.
“Judiciary oversteps only when either the legislature does not act or the executive does not perform its duties,” Justice Gavai said.
He, however, maintained that the recent attacks on the judiciary by Dhankhar and BJP MP Nishikant Dubey — who had said Parliament should be closed if the Supreme Court took policy decisions — could not be construed as a systemic or systematic way to undermine the judiciary by the ruling dispensation. “I think the party (BJP) has said it is not the
party’s view,” Justice
Gavai observed.
Justice Gavai said the involvement of the executive in the appointment of high court and Supreme Court judges was not a bad idea, and recommended a tweak in the National Judicial Appointments Commission (NJAC) Act. The NJAC, which aimed to replace the collegium system, was constituted by the previous NDA government.
On October 16, 2016, a five-judge constitution bench of the Supreme Court had quashed as “unconstitutional” the NJAC, a six-member body comprising the CJI, two seniormost judges of the Supreme Court, the Union law and justice minister and two “eminent persons” to be recommended by a search committee comprising the CJI, Prime Minister and the leader of the Opposition.
The CJI-designate noted that when he used to practise as an advocate in Bombay High Court, both the executive and the judiciary used to debate and discuss the names of judges to be appointed to the high courts and the
Supreme Court.
“That has been happening always. When I started practice, before the collegium system came into practice, the appointments were largely made by the government. There used to be compromise formulas…. Three names from the Chief Justice’s office and three from the chief minister’s office,” he said.
Referring to allegations that the Enforcement Directorate was missing the Prevention of Money Laundering Act by keeping accused persons in jail without trial, Justice Gavai said: “Right to life under Article 21 is sacrosanct and not subordinate to statutory
provisions.”
He recalled the bail granted by him to AAP leader and former Delhi deputy chief minister Manish Sisodia and several other accused who had been under prolonged
incarceration.
On August 4, 2023, a bench headed by Justice Gavai had stayed Congress leader Rahul Gandhi’s conviction and two-year sentence in a defamation case filed by BJP leader Purnesh Modi for his alleged derogatory remark on the “Modi surname”.
On July 19, 2023, a bench of Justices Gavai, A.S. Bopanna (since retired) and Dipankar Datta had granted regular bail to rights defender Teesta Setalvad in the case relating to the alleged fabrication of documents to frame high functionaries in the 2002 post-Godhra riots.
When this reporter drew Justice Gavai’s attention to the political overtones attached to the two prominent personalities, he said the courts were concerned with the merits of the issue and always remained apolitical.
“I don’t think the case of Rahul Gandhi or Teesta Setalvad has become political. Nobody discussed it. We decide on the facts of the case. He (Rahul) could not have contested the Lok Sabha elections for six years. The decision (disqualification for six years) not only affects the elected representative but also the
electorate who elected him,” he said.
Justice Gavai dismissed suggestions that the top court had recently been reluctant to deal with PILs relating to policy decisions in the wake of the criticism about the judiciary’s perceived overreach. He pointed out that on
November 13, a bench headed by him had directed authorities across the country not to demolish alleged unauthorised constructions without serving a 15-day prior notice to the aggrieved.
While passing the judgment, the top court had observed: “The chilling sight of a bulldozer demolishing a building, when authorities have failed to follow the basic principles of natural justice and have acted without adhering to the principle of due process, reminds one of a lawless state of affairs, where
might was right.”
“Our constitutional ethos and values would not permit any such abuse of power and such misadventures cannot be tolerated by the court of law… such an action also cannot be done in respect of a person who is convicted of an offence. Even in the case of such a person, the property/properties cannot be demolished without following the due process as prescribed by law,” the bench, which also included Justice K.V. Viswanathan, had said.
Justice Gavai agreed with Dhankhar’s observation that during the Emergency in 1975, “fundamental rights of citizens were curtailed” and Justice H.R. Khanna, who was the seniormost judge of the Supreme Court, “had to lose his job”.
On the increasing trend among judges and CJIs to seek post-retirement sinecure government postings, Justice Gavai said: “I have decided from the very first day that I am not going to accept any post after retirement.”
He said fixing a two-year cooling period for judges to accept post-retirement jobs, as suggested by former CJI R.M. Lodha, may not solve the problem.