When I was a child, I loved reading “Choose Your Own Adventure” storybooks. In these stories, you – the reader – were the protagonist. Every few pages, you would be asked to make a choice, which would lead you to different scenarios, and – eventually – to different endings. But the great thing about Choose Your Own Adventure stories was that if you didn’t like it, you could just go back, make a different decision, and change the ending. It was that simple.
If there is one common thread that runs through the six-month tenure of Chief Justice B.R. Gavai – which ends today – it is that he treated his Chief Justiceship as a Choose Your Own Adventure story. If there was some long-standing precedent that he did not like, he used his powers as the master of the roster to overturn it. If another bench of the Court issued a ruling that he didn’t like, he set up his own bench and overruled it. It did not matter that in doing so established norms and conventions were shredded, entirely new jurisdictions were invented, and the rest of the Court was diminished. What mattered was the outcome, which – just incidentally – often happened to be aligned with the outcome that the central executive wanted.
Let us be clear. Every Chief Justice that this blog has analysed has manipulated the roster to nudge the Court towards their preferred outcomes. CJI Misra did it. CJI Gogoi did it. CJI Bobde did it. CJI Ramana did it. CJI Lalit did it. CJI Chandrachud did it. CJI Khanna did it. Some of these manipulations were egregious, but whether out of a sense of self-restraint, or comity with their fellow judges, or some lingering concern for institutional integrity, these judges did not cross a certain line. In CJI Gavai’s tenure, the line ceased to exist. If his predecessors were – as the old saying goes – still only “first among equals,” despite everything, then he cast off the last remaining shackles of due process, and became a Chief in his Chiefdom.
As with previous posts, this blog will consider the tenure of CJI Gavai from three lenses: as the head of the collegium (A), as the master of the roster, in control of the direction of the Court (B), and as a judge of a constitutional court (C).*
A. Head of the Collegium
There are three major criticisms levelled at the collegium system of judicial appointments: first, that it is nepotistic; secondly, that it is non-transparent; and thirdly, that its opacity allows the central executive to exercise an informal, back-channel influence over appointments. Previous Chief Justices’ tenures would rank poorly on one, or perhaps two, of these indices. Chief Justice Gavai’s tenure hit rock bottom on all three.
On nepotism: during his tenure, the Collegium (that he was the formal head of) appointed his own nephew a judge of the Bombay High Court. Such a direct conflict of interest has not been seen in recent memory. Of course, it was informally leaked that he did not take part in the specific meeting in which his nephew’s name was put forward. We do not know this, because the records of the meetings remain opaque. But either way, it does not matter: whether or not he was personally present at the meeting does not change the fact that he was the head of the Collegium at the time, and does not cleanse the conflict of interest.
On non-transparency: as we have previously noted, CJI Chandrachud’s tenure saw some basic information being provided about the deliberations of the collegium in selecting judicial candidates. This was not very much – and in some ways, it was even counterproductive in establishing hard limits to the degree of transparency that would come from the collegium – but it was something. Under CJI Khanna’s tenure, this something was also rolled back, and under CJI Gavai it vanished completely, taking the collegium back to the cabal-of-high-priests-meeting-in-a-secret-conclave that it has long been accused of being (a late disclosure of the personal details of appointees – such as their caste and gender – does nothing to remedy this basic defect and – once again – provides an appearance of transparency where there is none) .
The nadir of this opacity was reached in the controversy around the elevation of Justice Vipul Pancholi to the Supreme Court. This elevation was controversial for a number of reasons involving supersession of multiple other High Court judges and the bypassing of senior, qualified women judges (in a moment of supreme irony, in his farewell speech, CJI Gavai lamented having been “unable” to appoint any women judges to the Supreme Court – while himself being responsible for superceding them!)
Now, in the absence of any information, it is impossible to know what – if any – reasons the Collegium had for this appointment, just like it is impossible to know what reasons the Collegium has for any appointment. But for our purposes, it is crucial to note that one of the judges (in fact, the only woman judge on the Collegium) – Nagarathna J. – dissented from the Collegium’s decision, and even her dissent note has been kept a secret. In an interview published today, the CJI stated that if Nagarathna J.’s dissent had “merit,” it would have been accepted by the other judges in the collegium (we all know that is how things work – after all, if Galileo’s views had merit, surely the Catholic Church would have accepted them!). But by this logic, we might as well stop publishing dissenting judgments, because if they had “merit,” they would not be dissents at all. Such flimsy, post-facto justifications need not detain us further, were it not for the frightening future that they portend: a Supreme Court that is so centralised under the Office of the Chief Justice, that even expressions of dissent from within the institution are kept private: what Justice Robert Jackson once called “the unanimity of the graveyard.”
In sum, thus, not only do we have no access to the Collegium’s reasons for elevating someone as a judge of the Supreme Court, because these reasons are no longer recorded, we do not even have access to a judge’s dissent note that is formally on the record. Indeed, CJI Gavai’s decision to keep Nagarathna J.’s dissent note private was a harbinger of a theme that would be repeated throughout his tenure: a repeated diminishment of the collegial nature of the Supreme Court, and of other judges of the Court, at the expense of the all-powerful Office of the Chief Justice.
On executive influence: That the executive has a role to play in judicial appointments is a proposition accepted in most constitutional democracies. What this role ought to be is a matter of debate. But what is not a matter of debate is that this role should be transparent and clearly defined by law, and not something informal and shadowy. This is true whether a country has its executive literally appointing judges (as in the United States), or where the executive is one voice in a multi-member appointment commission (as in the United Kingdom), or where the executive has a downstream role in selecting from a shortlist (as in South Africa). The reason for this is obvious: as there is so much constitutional litigation against the executive, it is imperative to know precisely what role it has had in selecting the judges who will be adjudicating these cases.
The non-transparency and opacity of the Collegium is corrosive to this, and the more non-transparent the Collegium gets, the more corrosive things become. Nobody knows the exact role the executive plays, but everyone knows that through the pocket veto and other forms of pressure, it does play a role. And in the absence of specific information, as is inevitable, knowledge is replaced by the kind of speculation that is particularly toxic to maintaining public trust in institutional integrity.
None of this is new as far as the Collegium goes, but here again CJI Gavai broke new ground, and not in a good way. This involved the transfer of the High Court judge, Atul Sreedharan J. It was alleged that Sreedharan J. was repeatedly shunted between High Courts because he was a firm and pro-liberty judge whose orders were embarrassing the executive. We cannot comment on this because – once again – there is no transparency with respect to when, where, and for what reason the Collegium orders the transfer of a High Court judge. What we can comment on, however, is that when Sreedharan J.’s transfer order to the Chhattisgarh High Court (where he would have been a member of the High Court Collegium) was countermanded, and instead, he was transferred to the Allahabad High Court (where he would not be), the Collegium Resolution – for the first time – explicitly stated that this was being done at the recommendation of the central executive.
But if the whole purpose of the Supreme Court taking over the power of appointment and transfer of judges was to insulate these processes from the executive, then what role does an executive recommendation have to play in a transfer decision? More importantly, what was the recommendation, and why was it made? Yet again, we do not know, because nothing is transparent; what we do know now, however, is that it is on the record that a judge’s transfer was influenced by the executive (to the detriment of that judge’s seniority).
One does not need to think too far to see the impact this will have on other High Court judges: earlier, they were subject to transfer by an unreasoned collegium order. Now, they are subject to transfer by an unreasoned collegium order on the recommendation of the executive. It cannot be understated how deeply this undermines judicial independence.
B. Master of the Roster and the Direction of the Court
For the last eight years, this blog has critically examined the extraordinary administrative powers enjoyed by the Chief Justice as the “Master of the Roster”: this includes the power to assign cases to any judge or combination of judges (the CJI has thirty-three to pick from), the power to decide which cases are to be heard, and the power to leave cases hanging in cold storage. These powers – and the way that they have been wielded by each Chief Justice – means that it is, in large part, the CJI who decides not just the cases he places before himself, but also, in a very significant way, the direction of the Court under his tenure.
I. The Direction of the Court
What were some of the significant features of the direction of the Court under CJI Gavai? To start with, the Court continued its time-honoured tradition of judicial evasion: that is, its refusal to hear constitutional cases against the executive, and its maintenance thereby of a status quo that benefits the executive. During CJI Gavai’s tenure, long-pending constitutional challenges continued to go unheard, while – on the other hand – fresh cases pertaining to a very specific issue (the appointment of the district judiciary) were swiftly taken on board, heard, and decided.
However, the most egregious case of judicial evasion during CJI Gavai’s tenure was how the Supreme Court dealt with the challenge to the Election Commission’s decision to carry out a Special Intensive Revision (S.I.R.) of the electoral rolls in advance of Bihar state elections. The S.I.R. was challenged soon after it was announced, in early July. It raised fundamental constitutional issues that went to the heart of the electoral and democratic process, such as the competence and powers of the Election Commission to conduct such an exercise in the manner that it was doing, the constitutionality of placing the burden of proof on individuals to demonstrate eligibility through a list of documents, the possibility of mass disenfranchisement, and so on. It was assigned by CJI Gavai to a bench presided over by his next-senior-most colleague.
It is now late November. More than four months have passed, and the Supreme Court has not held a single substantive hearing on the constitutional challenge. What it has done is hold multiple, hours-long hearings on issues such as whether “Aadhaar” should be added to the list of documents or not, issues that are all obviously downstream from the constitutional challenge itself. In the meantime, the Bihar elections came and went, and the S.I.R. was subsequently announced in multiple other states.
To those who have been following and been involved with the Supreme Court over the last decade, this is a drearily familiar story: constitutional challenges languish until they become infructuous, until what they were challenging has become a fait accompli. In the meantime, the Court holds multiple – and chaotic – hearings on issues that are entirely disconnected from the substance of the challenge itself. The S.I.R. case is a particularly egregious example, as this is a challenge about the electoral process – quite literally, the very ground rules that enable democracy to function. For a constitutional court, this should take first and urgent priority; however, on repeated occasions, on listed dates, the Court told petitioners that it was “hearing other matters”, and this case would have to wait, or be heard for a few minutes (thus precluding any substantive engagement). No constitutional court worth the name would treat democratic disputes in such a callous manner.
The Court’s refusal to hear the case – and instead, to rule through a series of one-line interim orders – raises another issue. Constitutional adjudication is not just about settling the rights and obligations of parties, and protecting individuals from State power: it is also about judicial accountability. When Courts write judgments, they must necessarily give legal reasons, and in that process, explain themselves to the public: how, why, and in what manner have they reached their decision? This opens up Courts to public scrutiny and critique, and remains the only real node of accountability. When, therefore, in a case like the S.I.R., the Court takes highly consequential actions over a period of months, but there is no reasoned judgment (as everything is happening through interim orders), it also insulates itself from the accountability that comes with publicly and openly deciding the cases brought to it. This is of a piece with the opacity and non-transparency we discussed in the previous section, and both pertain to how the Court has, in effect, liberated itself from accountability. Judicial evasion is one of the most potent weapons through which it does so.
The other significant event which reflected on the direction of the Court under CJI Gavai’s tenure pertained to the “Vantara case.” In a hasty and irregular process, a bench of the Supreme Court – acting on two half-baked public interest petitions – set up a Special Investigation Team to investigate whether Vantara was involved in any illegality when it came to trafficking of wildlife and other related laws; equally hastily (in under three weeks, to be precise), the SIT filed a report clearing Vantara of all charges. At this point, it must be noted that there seems to be absolutely no principle or standard that determines when, and on what basis, the Supreme Court decides to set up these “SITs,” with all the far-reaching consequences that that entails; it apepars to depend entirely on the uncanalised discretion of the judges involved.
In any event, the Court then passed an extraordinary judgment, in which the most extraordinary part was two directions.
The first was an order that “no further complaint or proceedings based upon such same set of allegations shall be entertained before any judicial statutory or administrative forum.” In one stroke, the Court erased the entire criminal and civil law machinery that exists in the country, with respect to Vantara, on the strength of an SIT that it itself had constituted, and whose report has never been made public (of course, this is not the first time the Supreme Court has done this, and it remains now – as it remained then – unjustifiable).
The second was a direction that “we may leave it open to the respondent – Vantara to pursue its remedies in accordance with law for the deletion of any offending publication or for any action against those responsible for the misinformation or for actions for defamation…”
I have previously referred to this as the Supreme Court’s “Idi Amin jurisprudence.” One does not need to be a clairvoyant to read between the lines and understand this for what it is: a signal that it is open season on critics and dissidents. One does not need to be a clairvoyant because, again, one has seen this before: in cases involving Teesta Setalvad and Himanshu Kumar, where – utterly unconnected to the actual case before it – the Court makes these innocuous suggestions to prosecute or otherwise use the law against specific people. The continuation of this judicial vindictiveness under the tenure of CJI Gavai is disturbing.
As an aside, it is interesting to note that from start to finish, this case took forty-five days before it was closed, and all of that without the Court ever formally issuing notice on the petition.
What of other areas of constitutional law? Things largely stayed the same under CJI Gavai’s tenure as they had under his predecessors, which is not to say that things were good. Personal liberty continued to suffer. Political prisoners still languished in jail for years without trial, even as interminable hearings continued (and continue) before the Supreme Court. Challenges to administrative detention – such as that of the political leader Sonam Wangchuk – were kept pending with long dates until they became effectively infructuous. The Court continued to exhibit a peevish hostility towards the freedom of speech, berating one person, setting up an SIT (that SIT again!) to investigate the Facebook posts of another, and sanctioning continued police harassment by refusing to grant anticipatory bail to a third. The language of the Court continued to coarsen and cheapen towards some of the most vulnerable members of society, such as refugees and migrants. Indeed, while a dislike of refugees and migrants – and of the international legal framework that seeks to protect them from persecution – has long been part of the Supreme Court’s judgments, jibes and taunts from the bench towards the UN High Commission one day, and towards petitioners protesting the physical dropping of refugees into the ocean for deportation another day, marked a new low in the quality of the conversation that takes place within the halls of the nation’s highest constitutional court. While, naturally, one cannot hold the CJI directly responsible for specific oral remarks made by other judges, all in all, the Court’s drift from an institution that engages seriously and dispassionately with law and legal reasoning, to a forum where our society’s nastiest and most parochial sentiments now get a public airing from the bench, continued.
II. The Master of the Roster
It was in his actions as the Master of the Roster, however, that we saw CJI Gavai as the protagonist of his own “Choose Your Own Adventure Story.” The most prominent example of this, of course, was the manner in which he took up a Presidential Reference filed in the aftermath of the Court’s ruling (State of Tamil Nadu) that Governors and Presidents were bound by timelines to act on state legislative assembly bills.
In setting up a bench post haste, which then went on to render an opinion effectively overruling State of Tamil Nadu, CJI Gavai and his bench did something truly extraordinary: as I have noted at some length in this post, they created a new, intra-Court appellate jurisdiction which only one party can utilise: the central executive. After this Presidential Reference, whenever the central executive is unhappy with a case that they have lost before the Supreme Court, they can simply file a Presidential Reference (a privilege which no other litigant in the country has), and get a second bite of the cherry before a five-judge bench, where the previous decision is entirely ignored and the case considered afresh.
Yes, we have had Chief Justices previously who have administered what I have referred to as an “executive court”: but this is the first time we have had a Chief Justice who has formally created a privilege reserved only for the executive, and entrenched it within the Constitution. Perhaps we now need a term that goes beyond the “executive court” (see the Conclusion for a suggestion).
Other than the Presidential Reference case, CJI Gavai repeatedly manipulated the roster in other cases to overturn precedent that he didn’t like. A two-judge bench of the Supreme Court had passed a judgment holding that post-facto environmental clearances to big corporations involved in extractive activities (such as mining etc) were illegal. Against this judgment, a review petition was filed. A review is an extraordinary remedy requires three things: one – that it be heard by the same bench that passed the original judgment; two – that it be decided in circulation in chambers unless there is a specific, stated reason to hear it in open court; and three – that a review can succeed only if the original judgment has an error on the face of the record (and not simply because another judge believes the law should be decided differently).
After passing the environmental clearances judgment, one of the judges – Oka J. – retired. CJI Gavai then set up a review bench that had three judges instead of two: the other judge on the original bench (Bhuyan J), the CJI himself, and a third judge (Chandran J). Without any circulation or reason why the case was being reviewed in open Court, this three judge bench now passed a judgment “recalling” the original judgment (needless to say, Bhuyan J dissented).
And needless to say, the “recall” judgment made no effort to demonstrate how Oka J.’s original judgment was so erroneous that it had to be “recalled.” The consequences, as many have noted, are going to be devastating for the environment; but the consequences are also devastating for the Supreme Court as an institution, because clearly, even final judgments of the Court can be very quickly overturned if the Chief Justice does not like them.
These examples would have been bad enough on their own, but there are a litany of such cases: from the Court’s Constitution Bench decision on the district judiciary, to the notorious matter involving stray dogs, to an unreasoned stay upon another judge’s order that somehow came to him in “review” in open court after a split bench (see above), CJI Gavai’s tenure was marked by the manipulation of the master of the roster’s powers to not just assign and list cases, but to actively interfere with decided (or pending) cases (for a more detailed analysis, see Indira Jaising’s piece here). The upshot of this – other than the gutting of the doctrine of precedent and the rule of law – is, of course, a diminished institution. It was bad enough that as “first among equals,” the Chief Justice had vast administrative powers of assignment and listing, which could influence outcomes. This influence, however, was indirect; under CJI Gavai’s tenure, this became direct interference, thus effectively rendering the Office of the Chief Justice far more than “first among equals”, and in every way, a superior among subordinates.
Or, a chief in his chiefdom.
C. Constitutional Judge
What of CJI Gavai’s time as a constitutional judge during this six-month tenure? We do have some judgments involving the district judiciary (as noted above) and tribunals, but at least as far as substantive constitutional law goes, there is only the Presidential Reference (which was authored per curiam). On substantive issues, the Presidential Reference “opinion” has been critiqued elsewhere on this blog; here, in addition to what I have noted above, I will add one further point, which is in line with the theme of this post, and of CJI Gavai’s tenure. The effect of the Presidential Reference Opinion – other than gutting Indian federalism – is to place elected state governments not only at the mercy of Governors and Presidents, but – even worse – at the mercy of the Supreme Court.
At its heart, the Presidential Reference Opinion is an expansion of unprincipled and discretionary judicial power, because what it does is to give to itself the final call on whether there has been “enough” delay on part of Governors and Presidents to warrant judicial intervention – but, unlike the State of Tamil Nadu – with absolutely no standards to check the arbitrariness of the Court in making that determination. Henceforth, therefore, for every bill that a Governor pocket-vetoes, states will have to come to the Supreme Court and plead for intervention so that they can go about their business of legislation. And we have seen where this road goes before, with the 10th Schedule and the anti-defection cases: the Court turns into a political actor and a power-broker between the centre and the states, tipping the scales this way and that. And, just like in the 10th Schedule cases, because there is no law and there are no standards, the Court will not explain itself even as it makes hugely consequential decisions. Just like in 2022, the Maharashtra government flipped with two one-line interim orders of the Court, states will be informed through one-line diktats whether they can legislate or not.
It would be remiss not to conclude with a brief coda of the hypocrisy involved in the Presidential Reference Opinion. Forget, for a moment, the hypocrisy of the Indian Supreme Court invoking the “separation of powers” in 2025, given its sweeping role in Indian public life. Forget the hypocrisy of the Court suddenly becoming chary of invoking Article 142 of the Constitution in this case. Forget the sudden, odd fidelity to text when each of the judges on the bench owe their own position to the Collegium system, which was invented out of whole cloth. The fact is that the same CJI Gavai who headed this bench saw no problem with imposing a three-month deadline on an Assembly Speaker to decide on disqualification petitions. Walt Whitman may contain contradictions. A Chief Justice does not have that luxury. Or so one would have thought.
D. Conclusion
Through his tenure, the Chief Justice liked to speak about his achievements. He praised himself for having stopped “bulldozer raj” and restored the rule of law, even as the bulldozers continued to demolish homes. And on his farewell day, he praised himself for not having used a single foreign precedent in the Presidential Reference Opinion. He called it “swadeshi jurisprudence.”
But what exactly, one might ask, is “swadeshi” about a judgment written in English, relying primarily on the English common law of precedent, considering the powers of the English-invented institution of the “Governor,” and propounding a doctrine of executive deference that was originally propounded by the German jurist, Carl Schmitt?
Indeed, the greatest exponent of that same English language, one Shakespeare, famously asked us: what’s in a name? What we call the executive court, by any other name, would judge the same (or not judge, if it is performing judicial evasion). If CJI Gavai’s parting achievement is to bring together all these diverse elements of the executive court – judicial evasion, non-transparent appointments, manipulation of the roster, callousness towards personal liberty, “Idi Amin rulings,” coarse judicial language, and executive deference before all else (including federalism) – within one label, that of swadeshi jurisprudence, then perhaps we should be grateful to him for that. After all, brevity is the soul of wit, Shakespeare also said.
We look forward to the further evolution of this swadeshi jurisprudence.
Constitutional Law and Philosophy 