A look at outgoing chief justice of India TS Thakur's controversial year

The Supreme Court in 2016 can be called "The Thakur Court". Taking office on December 3, 2015, Justice Tirath Singh Thakur retired on January 3, 2017. However, despite being the head of the busiest highest court in the world, Thakur had little judicial control over the 11-12 benches which decide matters.

So Thakur assembled benches of five, seven, and nine to resolve important issues. Out of this came important decisions on financial federalism (allowing states’ entry tax), judicial review of the Ordinance Raj, secularising appeals to religion in elections. But several questions remained unanswered.

Decisions

During 2016 there were many other notable decisions. One refused to decriminalise defamation. Another pontificated that the National Anthem be sung in cinema halls before the feature film – as if India’s nationalism needs reinforcement.

It was not enough for the court to lay down guidelines for “sedition”, the law even though validated in 1962 needed re-examination. Sedition is wantonly used to harass people, as in the JNU case.

In the Soumya rape case, the court acquitted one (Govindaswamy) and did not examine whether death penalty should be awarded to others. I am against the death penalty, but an irate ex-SC Justice Katju thought that even an LLB student would know the judgment was incorrect. This led the Supreme Court to invite Katju for a discussion on the case in open court, but slammed a contempt notice on him. Katju having served the judiciary for decades, gave an unconditional apology which was recently accepted.

Meanwhile, the Supreme Court refused to issue notice in a case filed by Katju to question parliamentary resolutions deprecating Katju, calling Netaji a Japanese agent (which was true) and Gandhi a British agent (which was not). The court felt it could not interfere with Parliament’s internal procedures.

In education matters, the apex court ordered an all-India NEET test for medical students to allow a five-judge bench to side-step an 11-judge bench. In criminal matters, a direction was given to upload FIRs immediately in all (other than sensitive) cases. In another case, it was decided multiple sentences were to run concurrently.

In another remarkably wrong decision, the Thakur Bench rewrote the law of cricket management. Equally, a Thakur’s Bench kept Sahara in jail for contempt nearly three years unless he produced Rs 10,000 crore as bond.

Disputes

On federal issues, apart from the entry tax case, the court had to deal with BJP induced crisis in Arunachal and Uttarakhand to fulfill its claims to conquer power all over India. Doubtful decisions were made. It also had to deal with the water dispute cases, such as Cauvery and Polavaram.

In an advisory on the Punjab-Haryana SYL Canal case, the court sided with Haryana instead of returning the reference. On transferring cases outside Jammu & Kashmir, the court permitted transfer though not warranted constitutionally, unfortunately giving a nuanced emphasis to JK’s autonomous status.

Any chief justice has to negotiate with government for judicial appointments. In 2016, a Justice Kehar-presided bench struck down a constitutional amendment to restore to the judicial collegiums the power to appoint HC and SC judges. But it made a mistake in insisting on "Memorandum of Procedure" to process the appointments. The chief justices (with their collegiums plays a pivotal role) on judicial appointments.

Stand-off

Thakur ran into several difficulties. The first was Justice Chelameshwar’s protest that meetings in the collegium were not transparent and recused himself. Thakur promised to resolve this but failed. The second was that the Union government played ping-pong with the court on the memorandum.

Third, the government returned collegium appointments. In November 2016 the government returned 43 out of 77 SC recommendations. On January 3 2017, 39 cases were returned.

The Supreme Court still has seven seats vacant whereas vacancy in the high court is phenomenal. Chief Justice Thakur tried everything. He wept publicly, blamed the PM for not mentioning the judicial crisis in the PM’s Independence Day speech. On October 28, he warned the government on failing to appoint judges, threatening to take the crisis “to its logical conclusion”.

In fight mode, the CJI threatened to summon the PMO’s secretary to court. This was a continuing stand-off. The government lost the collegiums case, but will fight for “its” judges to be appointed. The collegium’s ultimate control over judicial appointments does not deter it.

Before his elevation as CJI, Thakur’s demeanour was perfect. Once he became the CJI, he became irritable, disposed cases on whims, changed as a person and a judge.

Thakur, a remarkably handsome man failed in his diplomacy. Many problems confront the court and it is in for some hard times.

(Courtesy of Mail Today.)

Also read: How CJI Thakur got burnt out before Diwali

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