Chief Justice of India BR Gavai highlighted protocol flaws during a visit to his home state of Maharashtra today during a discussion about judicial overreach. He claimed that if judges had broken protocol, talks concerning Article 142, which grants the Supreme Court exceptional powers, would have started. This was a covert jab at the Executive.
After attending a felicitation event in Mumbai, the Chief Justice—who became the second Dalit to be promoted to the nation’s highest judicial position last month—visited Chaitya Bhoomi, Babasaheb Ambedkar’s memorial.
The Chief Justice drew attention to the absence of three important authorities during his speech at the Bar Council of Maharashtra and Goa’s felicitation event: the Mumbai Police Commissioner, the Director General of Police, and the Chief Secretary of Maharashtra.
“The three pillars of democracy – Judiciary, Legislature and Executive – are equal. Every Constitutional institution must reciprocate and show respect to other institutions. When a person from Maharashtra becomes the Chief Justice of India and visits Maharashtra for the first time, if the Chief Secretary of Maharashtra, the Director General of Police or the Mumbai Police Commissioner don’t feel it appropriate to be present, then they need to reflect on that. Protocols are not something new, it’s a question of the respect one constitutional body gives to another,” Chief Justice Gavai said.
“When the head of a constitutional institution visits the state for the first time, the way they are treated should be reconsidered. Had it been any one of us, discussions about Article 142 would have arisen. These may seem like small things, but the public must be made aware of them,” he added.
Mumbai Police Commissioner Deven Bharti, Director General of Police Rashmi Shukla, and Maharashtra Chief Secretary Sujata Saunik were all there when the Chief Justice went to Chaitya Bhoomi, presumably after learning of the Chief Justice’s comments.
When questioned about his comments regarding the procedure failure at Chaitya Bhoomi, the Chief Justice said that he is “not fussy” about protocols and had merely mentioned what had occurred.
Following the Supreme Court’s historic ruling in the Tamil Nadu case, which essentially set a deadline for the President and Governors to clear bills passed by the legislature for the second time, the Chief Justice’s comments—particularly his reference to Article 142—are noteworthy because they come amid accusations of judicial overreach from some quarters.
In a letter to the Supreme Court, President Droupadi Murmu wondered if governors might be subject to deadlines. “Is the Governor bound by the aid and advice tendered by the Council of Ministers while exercising all the options available with him when a Bill is presented before him under Article 200 of the Constitution of India?” The President asked the Supreme Court.
President Murmu asked if a Governor’s exercise of constitutional discretion is justiciable — subject to a trial in court. She cited Article 361 of the Constitution, which says the President or the Governor shall not be answerable to any court for the exercise of the powers and duties of office.
“In the absence of a constitutionally-prescribed timeline and the manner of exercise of powers by the President, can timelines be imposed and the manner of exercise be prescribed through judicial orders for the exercise of discretion by the President under Article 201 of the Constitution of India?” President Murmu asked the Supreme Court, seeking its opinion on the matter.
In April, a bench of Justice JB Pardiwala and Justice R Mahadevan had used the court’s special powers under Article 142 to resolve a face-off over stalled Bills between the DMK government in Tamil and Governor RN Ravi. The court said the Governor’s refusal to approve 10 Bills was “illegal and arbitrary”. The judgment also said the President must consult the courts on constitutional matters. The bench said that if the matter pertains to policies, the Supreme Court can refuse to express its advisory opinion. “The exercise of a self-imposed restraint by the court in matters involving purely political considerations is in consonance with the doctrine of political thicket, that is, the courts do not venture into areas of governance in which the Constitution gives a prerogative solely to the executive.”
“However, in certain exceptional circumstances, the Governor may reserve a bill for consideration of the President on the grounds that the bill is perilous to the principles of democracy and an interpretation of the Constitution is necessary to ascertain whether such legislation should be granted assent or not. In such cases where a bill has been reserved majorly on the grounds of not being in consonance with the constitutional principles and involves questions of constitutional validity, the executive is supposed to exercise restraint,” it said.
“It is expected that the Union executive should not assume the role of the courts in determining the vires of a bill and should, as a matter of practice, refer such question to the Supreme Court under Article 143. We have no qualms in stating that the hands of the executive are tied when engaging with purely legal issues in a bill and only the constitutional courts have the prerogative to study and provide recommendations as regards the constitutionality of a bill,” the judgment said.
This judgment led to strong responses from several quarters, including a couple of BJP MPs. BJP’s Nishikant Dubey questioned if the Supreme Court can give directions to the Chief Justice’s appointing authority – the President. “Supreme Court is responsible for inciting religious wars in the country. The Supreme Court is going beyond its limits. If one has to go to the Supreme Court for everything, then Parliament and State Assembly should be shut,” he said.
The BJP said it has always respected the judiciary and distanced itself from the comments. The court emphasised that courts are not “fragile as flowers” and rejected a contempt of court petition against Mr. Dubey, but it characterised the BJP MP’s comments as “highly irresponsible” and intended to garner attention.
