By Sujit Bhar
At this point of time, when the judiciary seems to be slowly changing track towards a more comprehensive understanding of the laws that govern us, towards a realisation of the inherent strengths of the Constitution that protect us and towards basic human values that were supposed to make us a nation of worldwide consequence, the Supreme Court of India and its benches have come into the limelight more than they ever had been.
Within this changing scenario there are some honourable judges of the top court who need to be specially lauded for their uncompromising stance, for their erect stance and their erudition. One such judge of the Supreme Court is Justice Bangalore Venkataramiah Nagarathna, daughter Justice E. S. Venkataramiah, the 19th Chief Justice of India (June 19, 1989 to December 17, 1989). Incidentally, Justice BV Nagarathna is in line to become the first woman Chief Justice of India, set to assume office as the 54th Chief Justice of India on September 25, 2027. She will occupy this position for 36 short days, but she will have broken the Supreme Court ‘glass ceiling’ by then.
Justice Nagarathna, who was nominated by former Chief Justice of India Justice N. V. Ramana and assumed office on August 31, 2021, was basically from the Karnataka High Court (2008 to 2021). Now 60, she completed her BA from Jesus and Mary College and earned her degree in law from the Faculty of Law, University of Delhi.
Her erect spine can be found in many of her utterances, whether verbal or in judgments. She doesn’t mince words while criticising the Executive, having once said during a Constitution Bench hearing that “…For any person holding a public office or is a public servant, there is an unwritten rule, and it is part of our constitutional culture, that we impose a self-restriction when we hold offices of responsibility and not blabber things which are very disparaging or insulting to our countrymen.”
Critical judgments in queue
This stance of hers will be evident as she sits in judgment of the case involving Azam Khan, on Freedom of Speech and Expression (Kaushal Kishore v State Of Uttar Pradesh). The case will decide whether the right to free speech and expression, especially of those in public office, may be curtailed by the right to dignity. She is part of the Constitution Bench that will decide if there should be a written code of conduct for legislators.
Also pending is a case to decide non-Hindus’ leasing rights in Andhra Pradesh temple premises (T.M.D. Rafi v State of Andhra Pradesh).
In this the Supreme Court bench will decide the constitutionality of an Andhra Pradesh law barring non-Hindu vendors from leasing property within the Mallikarjuna Temple premises. The court will decide whether the law is arbitrary, discriminates against non-Hindus, and violates the principles of secularism.
Both the above cases deal with basic human rights imparted to us by the Constitution. These are matters that need judgments on wafer-thin, virtually indistinguishable legal doctrines and will hold position of eminence in all future judgments.
Then there will be the very high profile case of electoral bonds (Association for Democratic Reforms v Union of India), in which the Supreme Court is deciding whether the current electoral bonds scheme facilitates anonymous corporate funding to political parties and whether it was wrongly certified as a Finance Act. The Court’s decision will affect transparency in election funding.
Courage
In a judgment of a case in which the Union’s 2016 Demonetisation Scheme was challenged (Vivek Narayan Sharma v Union of India), the Supreme Court bench upheld the demonetisation scheme in a 4:1 split, with the majority holding that the scheme was proportionate to the Union’s stated objectives and was implemented in a reasonable manner.
Justice Nagarathna was the lone dissenting judge – the others on the bench were Justices S Abdul Nazeer, BR Gavai, AS Bopanna and V Ramasubramanian – and she wrote a critical judgment. She held that that demonetisation of the whole series of Rs 500 and Rs 1,000 currency notes was a serious matter and it could not be done by the Centre by merely issuing a gazette notification.
She also stated clearly that her views differ with the others members of the bench. She accepted that the measure (demonetisation) was well-intentioned and well thought of and targeted evils such as black money, terror funding and counterfeiting, but she also declared the measure unlawful purely on legal grounds and not on the basis of objects.
At one point in her dissenting judgement, she asked: “…whether the power available to the Central Government under Section 26(2) RBI Act can be restricted to mean that it can be exercised only for one or some series of the bank notes and not all series in view of word any Appearing before series of Bank Notes under Section 26(2) of the RBI Act?”
That stood out in the backdrop of the judgement of the rest of the bench in that issue, stating: “…the modern trend is of pragmatic interpretation. The interpretation which leads to absurdity or which makes the provision futility must be avoided. Any Interpretation which advances the purpose and object of the legislation must be preferred when two constructions are possible of a particular provision.”
Her argument was crystal clear on the legal point, saying that when the demonetisation originates by way of recommendation by the Central Board of Bank, the above-mentioned section applies. However, if the proposal originates from the Central Government, as in the instant case, it is not under Section 26(2) of the RBI Act. It has to be by way of legislation and if the legislation is not the way then by way of ordinance if secrecy is required.
A note or judgment of dissent stays as a highlight within legal history, though as a mere footnote in the annals of history in general. The judge, behind such bold statements, though, are remembered. As would Justice Nagarathna.