IN FINE BALANCE: AN ASSESSMENT OF JUSTICE GAVAI’S RAJ

Justice B R Gavai deserves appreciation for asserting the judiciary's independence, as the strike-down of the Tribunal Reforms Act showed. But his latest verdict on presidential reference missed a cardinal point

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N his 1958 essay on the need for judges to retire, James C Sheppard used the memorable phrase “the age of judges and judges of the ages”.

The 52nd Chief Justice of India, B R Gavai, retires on November 23 on account of his age. ‘Judges of the ages’ emerge only rarely, based on the seminal contributions made to the nation and to humanity at large. It requires courage, conviction, anda great level of judicial integrity, accompanied by all other judicial virtues.

Let’s start the summation of Justice Gavai's era near its end. His latest pronouncement, on the presidential reference, realised the issues correctly, yet provided no solutions. Though the permissibility of judicial review over gubernatorial delay was acknowledged in Thursday’s judgement, by rejecting the idea of deemed assent, he negated the pragmatism in the Tamil Nadu governor’s case. Deemed assent is a constitutional imperative in situations of extreme delay. It also averts the situation of erring governors facing action for contempt of court. The Constitution Bench led by Justice Gavai missed this cardinal aspect.

This week, his Bench also struck down the Tribunal Reforms Act, 2021 whose provisions attempted to create executive dominance in India’s tribunal system. As such, it was an assertion of judicial independence.

As a judge of the apex court, Justice Gavai was part of the Bench that validated the abrogation of the special status of Jammu and Kashmir. By the time it was decided, the case had practically become infructuous, as the state’s special status had been irrecoverably abolished by then. Again, he was part of the Bench in the Association for Democratic Reforms (2024) case that struck down the dubious scheme of electoral bonds. His endorsement to the 2016 demonetisation scheme in 2023 was practically inconsequential; the delay in adjudication was, however, not attributable to him.