Former Chief Justice of India BR Gavai, in a candid interaction with journalists just hours before demitting office, addressed some of the most debated issues surrounding the judiciary today—judicial independence, collegium functioning, dissent, hate speech, nepotism, judicial transfers, and constitutional vision. His remarks offer rare insight into how the outgoing CJI viewed his role, responsibilities, and controversies during his tenure.
This SEO-optimized analysis highlights the most important observations made by CJI Gavai and explains their significance for the Indian legal system.
Judicial Independence: “A Judge Need Not Rule Against the Government to Prove Independence”
One of the strongest statements from CJI Gavai was on the perception of judicial independence. Responding to widespread commentary that the Supreme Court has become increasingly executive-friendly, he said:
“Unless you decide against the government, you are not an independent judge — that notion is incorrect.”
According to him, a judge’s independence stems not from who he rules against, but from the papers and evidence placed on record, and the ability to decide without fear or favour.
He emphasised that judges must not be viewed as adversaries of the government; rather, their fidelity should be to the Constitution and the case facts. This remark is significant amid rising criticism that the judiciary often avoids ruling against the executive.
Collegium System: Autonomy Still Intact
CJI Gavai defended the collegium system, asserting that despite criticism of “judges appointing judges,” the mechanism continues to preserve the judiciary’s autonomy.
He clarified that while the collegium considers IB reports and views of the Law Ministry, the final decision remains with the judges themselves, ensuring institutional independence.
Dissent of Justice BV Nagarathna
On the much-discussed dissent by Justice BV Nagarathna regarding the elevation of Gujarat High Court Judge Justice Vipul Pancholi to the Supreme Court, CJI Gavai remarked:
“If the dissent had any merit, then the other four judges would not have agreed to the final decision.”
This reaffirms that dissent within the collegium is not new, and differences are part of the deliberative process, not signs of breakdown.
Why No Woman Judge Was Elevated During His Tenure?
A major criticism of the outgoing collegium was the failure to appoint even a single woman judge to the Supreme Court.
When asked, CJI Gavai explained:
“There was no consensus among the collegium.”
This highlights the larger structural challenge—pipeline issues, seniority concerns, and inter-collegium disagreements—that prevent deserving women judges from reaching the apex court. His answer also subtly signals that the CJI alone cannot ensure diverse appointments without collective agreement.
His Background as First Buddhist and Second Dalit CJI: Influence on His Judging
CJI Gavai acknowledged that his social background shaped his outlook towards the Constitution. He stated his judicial philosophy was guided by:
- Directive Principles of State Policy (DPSPs)
- Social and economic justice
- Balancing Fundamental Rights with Directive Principles
He referred to Justice KK Mathew’s vision in the Maruti case, emphasising that judges too are “State” under Article 12, and therefore must advance constitutional goals.
This ideological commitment reflects in his judgments relating to affirmative action, social justice, and administrative fairness.
Judicial Transfers: Decisions Based on Complaints & Administrative Needs
Judicial transfers were one of the most contentious issues during his tenure. CJI Gavai clarified that transfers were made only when:
- There were verified complaints against judges, or
- Guidance of senior judges was needed in a particular High Court.
He stressed that transfers were not arbitrary and were processed after inputs from consultee judges.
This explanation is a defence against criticism that transfers were used as a tool of control within the judiciary.
On Nepotism: “Perception Is Overblown”
When questioned about alleged nepotism in judicial appointments, he said:
“Not more than 10 or 20 percent are appointed as such. If they are meritorious, should we discard them?”
He acknowledged that candidates with family backgrounds in the profession are held to a higher standard, but rejected claims of widespread nepotism.
The ‘Creamy Lawyer’ Reservation Judgment
Responding to whether the Supreme Court’s ruling on excluding “creamy layer” from SC reservations should become law, CJI Gavai said that the decision lies with the executive.
He added that it is not equal treatment if the son of a chief secretary is compared with the son of an agricultural labourer, thus reiterating the constitutional purpose of reservations as a tool for substantive equality.
The Governors Case: Limited Judicial Review
On criticism that the Supreme Court’s ruling in the Governors case puts the burden on States to approach the court when Governors delay bills, CJI Gavai said:
“We cannot read something that is not there in the Constitution.”
He defended limited judicial review, stating that the Court cannot assume powers not granted by the Constitution.
Pressure from Executive? “Never.”
On whether he faced pressure from the executive, CJI Gavai replied unequivocally:
“I never faced any pressure. Genuinely never.”
This statement carries significance given the public discourse around judicial independence during his tenure.
Need for a Hate Speech Law
Perhaps the most important policy recommendation came when he said:
“A law for hate speech is needed.”
While courts have repeatedly urged governments to act, this is a rare instance of a CJI openly saying legislative action is necessary to curb the rising instances of hate crimes and inflammatory speech.
Personal Satisfaction: Bombay HC Kolhapur Bench
CJI Gavai expressed deep satisfaction in establishing the Kolhapur bench of the Bombay High Court, calling it one of the achievements closest to his heart.
Conclusion
CJI BR Gavai’s farewell interaction offers a broad view of how he interpreted judicial independence, dealt with institutional challenges, and remained committed to constitutional values. His remarks on dissent, hate speech, collegium autonomy, and social justice provide critical insight into the functioning and future direction of the Supreme Court.
For law students, researchers, and practitioners, this interview offers a valuable reflection on the evolving expectations from the Indian judiciary—where independence, accountability, and constitutional morality remain central pillars.
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