Judicial evasion and the status quo: on
Mains Paper 3: Polity
Prelims level: CVC
Mains level: Judicial evasion
- On October 26, 2018, a three-judge Bench of the Supreme Court,
headed by the Chief Justice of India, was confronted with a straightforward
legal question: whether the decision taken by the Central Vigilance
Commission (CVC) and the Central government to divest Central Bureau of
Investigation (CBI) Director Alok Verma of his powers and functions was
- The question was a straightforward one, because it required the
court to interpret three legal instruments: the Delhi Special Police
Establishment (DSPE) Act (that brought the CBI into existence), the CVC Act,
and the Supreme Court’s own prior judgment in Vineet Narain.
- The counsel for Mr. Verma argued that the DSPE Act made it clear
that the CBI Director had a guaranteed, two-year tenure, and could not be
transferred without the consent of a high-powered committee consisting of
the Prime Minister, the Leader of the Opposition, and the Chief Justice of
- This interpretation of the Act was buttressed by the Supreme
Court’s exhortation, in Vineet Narain, that the Director must be protected
from political influence.
- The Attorney-General, on the other hand, argued that the
committee’s role was purely recommendatory, that the power vested with the
Central government, and that in any event Mr. Verma had not been
- The Supreme Court itself acknowledged, what was at stake was a
“pure question of law”.
- The Alok Verma Case or “CBI vs CBI”, as it has come to be
popularly known reveals some of the pathologies that have plagued the
Supreme Court’s conduct in recent high-profile cases.
- As indicated above, when Mr. Verma approached the court, the legal
question was straightforward: were the CVC and the Central government
authorised to divest him of his functions as CBI Director?
- It was a question that, when the court finally got around to it,
took it no more than eight pages to answer.
Why then did the case take six hearings and two-and-a-half months?
- A perusal of the Court’s orders reveals the following: on August
26, the court directed that the CVC finish its pending investigation against
Mr Verma, under the supervision of a retired Supreme Court judge.
- On November 16, the court received the CVC report in a “sealed
cover”, and allowed Mr. Verma to respond (also through a sealed cover).
- On November 20, the court passed a cryptic order stating that “for
reasons that need not be recorded, we are not inclined to afford the parties
a hearing today”, and adjourned the case to November 29.
- It was reported that the Chief Justice was “annoyed” that some of
the contents of the “sealed cover” had been leaked. On November 29, the case
was listed for hearing final arguments, which then took place on December 5
- The court reserved its judgment on December 6, and finally
delivered it January 8.
Reasons for delay
- The Supreme Court dragged on for months a case that could have
been decided within days.
- And this was of crucial significance: Mr. Verma retires at the end
of January. It is questionable what, precisely, does it really mean for the
Supreme Court to “reinstate” him midway through January.
- This is not the first time that an important, time-sensitive case
has been dragged on in a manner that materially affects the situation of the
- In the Aadhaar challenge, for example, the case was finally heard
six years after it was filed, effectively allowing the government to present
a fait accompli to the court.
- This is “judicial evasion”: the court avoids deciding a thorny and
time-sensitive question, but its very refusal to decide is, effectively, a
decision in favour of the government, because it is the government that
benefits from the status quo being maintained.
- In the Alok Verma case, the Supreme Court finally returned a clear
finding that the CVC and the Central government had acted outside their
jurisdiction in divesting Mr. Verma.
- However, the court then went on to also hold that the correct
authority the high-powered committee would have to consider the allegations
against him, and decide on the case within a week.
- In the meantime, Mr. Verma was restrained from taking “any major
- Mr. Verma’s challenge, to recall, was that his divestment was
procedurally flawed. The Supreme Court’s limited remit was to decide that
- It was not for the court to then direct the committee to consider
the case against Mr. Verma. Still less was it for the court, after holding
that Mr. Verma’s divestment was invalid in law, to place fetters on his
powers as the Director, thus presumptively placing him under a cloud of
- During the Constituent Assembly debates, there was a proposal that
all cases involving fundamental rights be decided within a month.
- The fear was that the more time the court took, the more the
government would benefit from the status quo. Recent events have confirmed
- In high stakes cases, time-sensitive cases, the court must ensure
two things: that the judgment is timely, and that the judgment is clear.
- The Alok Verma case demonstrates how, when the court fails to do
so, it abdicates its role as the sentinel on the qui vive, and allows the
government to get away with abuse of law.
- All this suggests an attempt to chalk out a “middle ground”, which
would be appropriate for a durbaar engaging in informal dispute resolution.
- It is not appropriate, however, for a Constitutional Court that is
tasked with providing clear answers to the legal questions before it.
- This, once again, is familiar: in the Supreme Court’s Aadhaar
judgment, although private parties were banned from accessing the Aadhaar
- The ambiguity in the court’s holding meant that different parties
interpreted the judgment differently leading to an amendment to the Aadhaar
Act that attempts to circumvent the judgment by letting in private parties
through the backdoor.
- This is, once again, a reminder that much like judicial evasion
ambiguity is not neutral.
- It primarily benefits the party that has the power to exploit it,
and that party is invariably the government.
Q.1) KAVACH is a
a) Laser wall to safeguard the 198 km India-Pakistan international border in
Jammu and Kashmir.
b) RADAR technique used at IndoPakistan border.
c) Unbreakable shield to protect army tanks.
d) Bunkers developed at the border region in Jammu and Kashmir.
Q.1) Judicial evasion and ambiguity benefits the governments of the day and the
judgments of the Constitutional Court should be clear, timely and without
ambiguity”. Do you agree with the statement? Give reasoned arguments.