Landmark judgments follow new CJI's assumption of office

A look at some major judgments by Chief Justice T S Thakur and Justice J S Khehar

January 4 marks a historic day for the nation, as the President swears in the 44th Chief Justice of the Supreme Court. Once appointed, Justice Jagdish Singh Khehar will become the first Sikh Chief Justice of India, taking over from the former Chief Justice Tirath Singh Thakur who completed his 13-month tenure on January 3.

According to Manish Tiwari, senior advocate, Supreme Court, the tradition of leading the apex court with distinction, which was a hallmark of former Chief Justice T S Thakur, will surely continue under the able guidance and vision of the enigmatic Justice J S Khehar.

An administrative and constitutional law expert, Justice Khehar has already made his mark on Indian jurisprudence with several landmark judgments, including the striking down of the National Judicial Appointments Commission Act (NJAC Act) which gave rise to the much spoken about rift between the Centre and the judiciary in recent times.

“The ongoing tussle on the issue of judicial appointments in the backdrop of the NJAC verdict still remains largely unaddressed and will be the topmost priority of the new Chief Justice as he takes on the reins and must be dealt with carefully,” says Indira Jaisingh, senior advocate, Supreme Court.

Business Standard now looks at some major judgments during the tenures of T S Thakur and J S Khehar, which have evolved the course of Indian legality in the past few years.

Diesel ban case

In a bid to curb environmental and vehicular pollution, a three-judge bench headed by T S Thakur took on the issue of diesel emissions through a series of orders regarding to the plying of commercial vehicles, taxis and registration of luxury automobiles in the national capital region (NCR). The bench first took to task the issue of commercial vehicles entering the NCR in October 2015 by constituting an environmental compensation charge for goods carriers arriving at Delhi. In December 2015, the apex court furthered its activist trend by banning the registration of all luxury diesel vehicles in the NCR region.

Then turning its gaze on taxis, the bench in April 2016, also barred diesel cabs from operating in the capital region and ordered the conversion of all such vehicles into using less polluting fuels such as CNG. This order was later modified to allow already registered diesel taxis to continue operations until the expiry of their tourist permits, but restricted new registrations to petrol and CNG vehicles alone. Finally in a massive relief to large automobile manufacturers, the bench also relaxed its ban on luxury diesel vehicles, after setting a first of its kind condition requiring the payment of a one percent levy on the ex showroom price under the polluter pays principle, in August 2016.

Entry tax judgment

 In a triumph to the federal structure of the country, a nine-judge bench presided by Chief Justice T S Thakur on November 11, 2016 upheld the validity of taxes levied by state governments on goods entering into their borders from other regions. After much deliberation and to the disappointment of several large corporates, the bench opined that states were within their rights to design fiscal legislations under Entry 52 List II of the Constitution and such taxations would not be illegal if they were non-discriminatory in nature, a fact that needed to be determined in each individual circumstance. In arriving at its conclusion, the court highlighted that a law could not be termed discriminatory merely because it possessed certain differences, as long as there existed no unfavourable bias towards a particular category. According to the bench, any other conclusion would render economic unity and common progress of the nation an illusion. The verdict has allowed the states to secure revenues of around Rs 35,000 crore.

Regulation of the BCCI

 Following the IPL betting and spot fixing scandal, a Supreme Court bench headed by T S Thakur appointed the R M Lodha panel to recommend changes to the operational structure of the world’s largest cricketing body. During the hearings, Thakur made critical conclusions regarding the role of the organisation’s officials, as akin to the performance of a public function and ordered that no office bearer of the BCCI could have any commercial interest in the game of cricket. Just a day before his retirement, Chief Justice Thakur directed the removal of the president Anurag Thakur and secretary Ajay Shinde of the BCCI and ordered the affairs of the organisation to be administered by an independent committee. The court also followed up on its previous warnings and issued a contempt notice to Anurag Thakur under allegations of making false statements amounting to perjury.

2G judgment – Presidential reference

Justice Khehar, as part of a five-judge bench clarified on September 27, 2012 that an auction order passed earlier by the apex court applied to the 2G case alone and did not apply to subsequent allocations of resources, as the policy of auctioning was not a constitutional mandate. The judgment came on a presidential reference to a February 2, 2012 decision cancelling 122 2G licenses, holding that such natural resources should be distributed through public auctions in the backdrop of the telecom scam.

Sahara – Subrata Roy case

On May 6, 2014, Justice Khehar, as part of a two-judge bench rejected claims alleging violations to principles of natural justice and upheld a March 4, 2014 order jailing Sahara chairman Subrata Roy. The bench concluded that Roy and the Sahara group had consistently frustrated the orders of the court, directing the refund of Rs 20,000 crore to aggrieved investors and by doing so had adopted a demeanor of defiance not amenable to the rule of law.

NJAC judgment

A five-judge bench headed by Justice Khehar on October 16, 2015 declared the government’s attempts to replace the collegium system of judicial appointments with the NJAC Act and 99th Constitution Amendment, as unconstitutional and in violation of the basic structure of the Constitution. The bench struck down the NJAC Act, which received the assent of the President in December 2014, on the ground that the composition of the appointments commission did not adequately preserve the independence of the judiciary and violated the doctrine of separation of powers as a result. The judgment restored the collegium system and directed the government to submit an alternative Memorandum of Procedure to evolve the procedure of judicial appointments in the constitutional courts of the nation.

Profile of Justice J S Khehar

* Date of Birth – August 28, 1952

* Graduation – Government College, Chandigarh – 1974

* Bachelor in Laws: Panjab University – 1977

* Master in Laws – Panjab University – 1979

* Appointment as Assistant Advocate General, Punjab – 1992

* Designation as Senior Advocate – 1995

* Appointment as Judge of Punjab & Haryana High Court – February 8, 1999

* Appointment as acting Chief Justice of Punjab & Haryana High Court – August 2, 2008 & November 17, 2009

* Appointment as Chief Justice of Uttarakhand High Court – November 29, 2009

* Appointment as Chief Justice of Karnataka High Court – August 8, 2010

* Appointment as Justice of Supreme Court  – September 13, 2011

* Appointment as Chief Justice of Supreme Court – January 4, 2017 (after swearing in ceremony)

* Date of retirement from Supreme Court – August 28, 2017 (expected)