On a frigid December evening in 2016, Virendra Kumar, a retired professor who served as the chairperson of the law department in Panjab University, went to Delhi to meet his former student, Jagdish Singh Khehar, who was about to be appointed the 44th chief justice of India. During the conversation, the professor later told me, Khehar said, “Doctor saab, aapne jo realist movement padhaya tha schools of jurisprudence mein, uska ab maine yahan Supreme Court mein istemal kiya hai”—the philosophy of legal realism, which you taught me about in the schools of jurisprudence course, I have used it here in the Supreme Court.
I met Kumar at his house in Chandigarh in February 2017 while I was reporting the cover story for the June issue of this publication. In the piece, I examined the history of the tussle between the executive and the judiciary, and Khehar’s impact on it during his short tenure as chief justice, which ended on 27 August. When Kumar brought up his meeting with the chief justice, we were discussing a 2014 judgment in which Khehar dismissed the bail plea of Subrata Roy, the founder and chairman of Sahara Group. At present, Roy is out on parole, which is scheduled to last until 10 October.
Kumar was not the only person I discussed this with. Over the course of my reporting, I met over 70 people—lawyers, legal academics, and present as well as former members of the higher judiciary. Several of them—without my asking—termed Khehar’s Sahara judgment as their favourite of his oeuvre.
This was surprising. Though the former chief justice will likely be remembered most for the judgments passed in the final week of his tenure—on the question of privacy as a fundamental right, and triple talaq—even at the time I was reporting, he had already authored judgments that were far more consequential than jailing Roy. For instance, not long before he was named chief justice, Khehar led a five-judge bench that struck down the 99th constitutional amendment, which proposed the setting up of the National Judicial Appointments Commission, or the NJAC, to make appointments to the higher judiciary. Khehar’s judgment ensured that for the foreseeable future, the power to appoint judges would remain with the judiciary. It is not possible to unpack the individual points of view I heard, since most people asked to remain anonymous, or refused to speak on the record. Broadly, though, it can be said that those who sang praises of the judgment were most delighted by Khehar’s dressing-down of Roy’s counsel—some of the most eminent lawyers of the country.
But the second—and perhaps more intriguing—reason this choice is surprising is that, as some of the worried detractors pointed out, the judgment appears not to follow the due process of law. The sceptics, though far fewer, were disturbed—in the words of a former judge—by the “abrogation of due process” and the precedent it set.