'Hitting at the Very Concept of Separation of Powers': CJI Gavai Cautions Against Executive Being Judge
Justice Gavai also said, 'And, even if a person is convicted, still he is entitled to the rule of law...I am happy we could lay down the guidelines.'
Chief Justice of India B.R. Gavai. Photo: PTI
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New Delhi: Days after the Centre has introduced a bill in Parliament to sack an elected MLA or an MP functioning as a minister, chief minister and the prime minister if they are jailed for a month without their guilt proved in a court of law, Chief Justice of India (CJI) B.R. Gavai has said, "If the executive itself is permitted to be a judge, then we will be hitting at the very concept of separation of powers" granted by the Constitution.
Speaking at a felicitation function organised by the Goa High Court Bar Association in Panaji on August 23, the CJI, however, referred to the significant judgement of the apex court in 2024 against "bulldozer justice" by some Bharatiya Janata Party (BJP)-run states including Uttar Pradesh that had set guidelines against such arbitrary demolitions.
As per an Indian Express report, the CJI said, "We were perturbed by the fact that...people who were not even tried ...their houses were being demolished without following due procedure of law. And we held that ...the members of the family who reside in the house , they also are made to suffer for no fault of theirs."
Justice Gavai also said, "And, even if a person is convicted, still he is entitled to the rule of law...I am happy we could lay down the guidelines."
He also referred to another landmark order of the SC passed in 2024, as per which the constitutionality of sub-classification within the Scheduled Castes (SCs) community was upheld for reservation to benefit in real terms. He said that he wrote his judgement as per his conscience even though he was criticised by people from his own community.
The CJI said that generations of a family become IAS officers from the same reserved category which is, however, not the reality for someone who may belong to the same community but is a mason or an agricultural labourer.
Highlighting the point about the existence of a 'creamy layer' within the SCs, he said, "The question I put to myself (while writing the judgement) was that son or daughter of a person who gets education in the best of the schools in Mumbai and Delhi...Can he be equated with son or daughter of a mason or an agricultural labourer in a village, who takes education in a zilla parishad or gram panchayat school?"
In the August 2024 judgement passed by the seven-judge bench of the apex court in a 9-1 majority, it was ruled that sub-classification within the SC and Scheduled Tribes (ST) reservation is permissible to grant separate quotas for more backwards within the categories.
'I have been widely criticised for sub-classifiction judgement from people belonging to my own community'
The bench, led by then CJI D.Y. Chandrachud, had Justice Gavai among other SC judges. The bench had ruled that the states have the power to sub-classify the reserved categories of SCs and STs into different groups based on their backwardness to extend the benefits of reservation.
At the event in Goa, CJI Gavai said, "The earlier speakers have also spoken about my judgement on sub-classification...I have been widely criticised for the said judgement from people belonging to my own community but I always believed that I have to write my judgement not by the demands of the people or desires of the people, but as I understand and as per my own conscience."
Justifying the judgement, the CJI said that Article 14 of the Constitution "does not mean that equality amongst all equals."
"What is contemplated is that unequal treatment to unequals so that they become equal, is what our Constitution promises. And therefore, by putting a child of a labourer residing in a village and a child of a chief secretary residing in Mumbai and studying in the best of the schools and the best of facilities, my view was that it hits at the very basic concept of equality, and fortunately, my view is supported by three other honourable judges of the SC," the CJI said.
The news report quoted Justice Gavai as saying that he was happy that in his journey as a judge for the last 22-23 years, he could "contribute a bit in the march of the Indian Constitution, or India towards social and economic justice."
This article went live on August twenty-fourth, two thousand twenty five, at forty-eight minutes past twelve at noon.The Wire is now on WhatsApp. Follow our channel for sharp analysis and opinions on the latest developments.
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