While evaluating the tenure of outgoing Chief Justices of India (‘CJI’), one is constantly looking for the gold standard against which to match it. And unfortunately, in the past decade, I have been unable to find that gold standard. Tragically, but truly, we seem to be stuck in a situation where the new normal is a further decline in standards of independence and institutional integrity rather than an ascending standard towards a legacy of judicial independence, judicial integrity of the institution, and a lasting constitutional jurisprudence. The task of evaluating becomes painful.
Three chief justices of India have retired in quick succession of each other and it would be useful to look at their respective social backgrounds and “legacy”. The first of the three came from a Brahmin community - a dynasty judge - Justice D.Y. Chandrachud, the second came from a professional legacy - Justice Sanjeev Khana - who as we all know was chosen out of turn to be the Chief Justice of India, and the third belonged to a Dalit community, Justice B.R. Gavai.
Looking for differences among the outgoing chief justices is normal and there are many differences between the three: some not so significant, some extraordinarily significant.
In terms of tenure length, both CJI Khanna and CJI Gavai had short tenures and hence evaluation of their jurisprudential legacy would be difficult; opportunities were rare in that short period. It must be said though that during his short tenure CJI Khanna was much appreciated by many for the transparency he showed in making public the material available against Justice Yashwant Varma of the Delhi High Court when cash was found at his residence. He later recommended that the matter be carried forward by the Government to its logical conclusion by setting up an inquiry under the Judges (Inquiry) Act. This single step enhances the stature of the Judiciary in achieving some form of accountability for misconduct within its ranks.
On the judicial side, his order staying the filing of further suits relating to the Places of Worship Act put a halt to the build up of communal violence in the country and was no small achievement. A challenge to the validity of the Act is pending and we will no doubt see it come to some conclusion during the tenure of the incoming Chief Justice. Under CJI Khanna’s tenure, three appointments were made to the Supreme Court - among which was that of Justice Joymalya Bagchi, who was appointed out of turn with the apparent aim of selecting him to become a future chief justice - an emerging phenomenon we will come back to later.
Although the tenure of CJI Gavai was also short, expectations from him were high given he was to be the only second Dalit chief justice in a Brahmin dominated court (with a Brahmin, CJI Chandrachud, who also came from the Bombay HC, having most recently steered the Court for a long tenure).
That being said, I must avoid the temptation to evaluate CJI Gavai's tenure against that of CJI Chandrachud, on whose ‘legacy’ I have already written. I will make a bold attempt to not draw those parallels.
The times we live in require us to primarily evaluate the functioning of a Chief Justice on the administrative side rather than on the judicial side. Attacks on the independence of the judiciary have come mainly from a majoritarian government attempting to pack the court with friendly judges. How have successive Chief Justices dealt with these challenges?
Added to this is the fact that the tenures of Chief Justices are relatively, and generally, not long, in the case of CJI Gavai, being not more than six months of which about two months went in vacations. It is difficult, if not impossible, to leave a jurisprudential mark within this short period.
We live in times where there are concerted attacks by the ruling regime against the judiciary, in particular against the very system of appointing judges by the collegium, the intention being to give to the executive primacy in the matter of appointments. These attacks are brutal, straightforward and ideological. In their brutal form, we have seen comments from the former law minister Kiren Rejuju and the former vice president Jagdeep Dhankar who openly attacked the Collegium system as being one that needs to be abandoned.
It appears that CJI Chandrachud was able to deal with these attacks through a process of negotiations where we saw the law minister lose his portfolio owing to consistent, caustic attacks against the judiciary. No government can afford to have such open confrontations with the judiciary where 90 percent of all court work relates to challenges to government work. We possibly saw the same thing happen with Dhankar, who not only attacked the collegium system but also the doctrine of basic structure of the Constitution of India, and ultimately saw an untimely end of his tenure during CJI Gavai’s chief justiceship. It may not be possible to establish a connection between these events but I would imagine that there exists a back channel of communication including seminars and conferences where the Judiciary and the executive have opportunities to voice differences between them at the policy level .
For all intents and purposes, it would appear that the two Chief Justices - Justice Chandrachud and Justice Gavai - are incomparable from any point of view. Whereas, one was born into a “legacy” family whereby his father, once India’s longest serving CJI, seemed determined to ensure that his son became the Chief Justice of the country, the other came from a political background. Justice Gavai’s father was the founder of the Republican Party of India (Gavai) faction, a duly elected member of Parliament, and later the governor of Bihar, Sikkim and Kerala. Interestingly, it is possible that Justice Chandrachud was consulted by the CJI Ranjan Gogoi led Collegium in the matter of Justice Gavai’s appointment and he recommended Justice Gavai’s appointment.
No two people could have been more different from each other. One a Brahmin, the other a Dalit. In October, when a rogue lawyer threw a shoe at CJI Gavai, angered by his remark against Lord Vishnu earlier, it snowballed into a cascade of casteist harassment by the Hindu right wing. CJI Chandrachud, too, had been one of the most trolled judges of the Supreme Court. While CJI Gavai certainly established his reputation as being secular, CJI Chandrachud had made no secret of his Hindu pride on public platforms and in personal communications with the executive .
Yet, when one begins to compare outcomes for the institution, how different they were from each other is a question that historians will have to answer in the days to come.
Tragically, but truly, we seem to be stuck in a situation where the new normal is a further decline in standards of independence and institutional integrity
Undoing a past ‘legacy’
To some extent, CJI Gavai’s tenure was marked by an attempt to undo decisions taken by CJI Chandrachud, which in a manner of speaking, had come to represent his style of functioning. Given the disappointments that we had faced with CJI Chandrachud, CJI Gavai’s decisions early on his tenure, including symbolic ones, such as reinstating the Supreme Court’s old logo gave the appearance of being measures which were intended to undo an undesirable legacy. That same month, he dismantled the Rs 2.6 crore air-conditioning and glass panels in the corridors. It was also under his tenure that the Supreme Court wrote to the Centre for the immediate repossession of the CJI’s official residence where CJI Chandrachud had overstayed. While these were welcome decisions, to what extent were they truly an undoing of CJI Chandrachud’s legacy, especially in terms of long-term impact on the functioning of the judiciary?
What is the long term impact of Justice Gavai’s tenure on the institutional integrity of the court?
For one, as an administrator, CJI Gavai’s role in implementing the 200 point roster system for reservation of SC and ST employees in the Supreme Court, three decades after the R.K. Sabharwal judgment is one that could leave a lasting memory. However, not only is it to be followed up with rigorous implementation, it was also a missed opportunity to bring reservations in promotion within the Court - something Dr K.S. Chauhan had advocated for.
Did the Gavai Collegium leave a damaging legacy?
The primary means, however, of studying the long-term legacy would be in terms of understanding how the Collegium functioned under him, and the judges he appointed during his tenure, across India’s 25 High Courts, and the top Court.
High Court appointments
Let us begin with the High Courts. Some analysts have pointed out that some of the premier High Courts in the country have been ‘disturbed’ by appointments made by CJI Gavai’s Collegium in very significant ways. Taking the Delhi High Court (‘HC’), for instance, owing to an alarming frequency of judicial transfers (something the Delhi HC Bar Association, in a September letter to CJI Gavai noted to have caused ‘unease’), except for Justice V. Kameswar Rao, none of the five senior most judges of the HC are from Delhi. This has resulted in a destabilizing of tradition in the manner of administering the HC since the Collegium judges are not familiar with either the functioning of the bar or of the HC.
One of the institutions of the Delhi HC which has been impacted by these changes is its Mediation Centre. The Mediation Centre of the Delhi HC was probably the longest running mediation centre and had the reputation of being a role model. Knowledgeable sources now argue that the legitimacy of the Mediation Centre has been substantially reduced and neglected .
Although bulk appointments of judges have been made to the High Court of Bombay, many argue that under CJI Gavai's tenure, due care has not been taken to ensure that competent people are appointed. While some argue that the increase in numbers itself leads to access to justice by fast-tracking hearings in Court, others point out that an incompetent judge only adds to arrears. That apart, at least two of the judges appointed had adverse intelligence reports, and were appointed despite clear knowledge of these adverse reports for the sole reason that they were recommended by the Collegium headed by CJI Gavai.
CJI Gavai has also faced rightful criticism for the Collegium under him having recommended and appointed his nephew, Raj Wakode, as a judge of the Bombay HC. It is no solace to learn that CJI Gavai recused himself from the Collegium in relation to Wakode’s appointment, neither is the claim made by his brother that Wakode is more of a “distant relative”, keeping in mind the full extent of the chief justice’s position as ‘first among equals’, and the empirical proof of widespread nepotism in India’s judicial appointments.
In another instance, the Bombay HC Chief Justice, under whose tenure a circuit bench was set up in Kolhapur (a longstanding desire of CJI Gavai), was duly appointed to the Supreme Court in August 2025. Justice Alok Aradhe did not do much else to qualify him for the appointment over many others (Justice A.S. Oka, also from Bombay HC was compelled to write an article pointing out that due process of law was not followed in the setting up of the Bench.)
Notably also, judges from the Bombay HC, such as Justice A.S. Chandurkar, were elevated to the Supreme Court by bypassing senior women judges who had a legitimate claim to being appointed to the Supreme Court, including Justice Revati Mohite Dere.
It is often said that the Bombay HC is well represented in the Supreme Court. This is a misunderstanding. The truth is, it is Nagpur that is well represented in the Supreme Court of India.
For all intents and purposes, it would appear that the two Chief Justices - Justice Chandrachud and Justice Gavai - are incomparable from any point of view.
Supreme Court appointments
Five judges were appointed under CJI Gavai’s tenure to the Supreme Court, and none incorporated greater gender, caste or religious diversity to the bench. Each of these appointments were cleared in an average span of only 2.6 days since the date of recommendation. I would argue that it is now a given that the sooner the executive clears a file for appointment of a judge to the Supreme Court, the more evident it is that the person is acceptable to the ruling party.
By far, the most damaging decision taken by the outgoing Chief Justice is the appointment of Justice V.M. Pancholi to the Supreme Court, handpicked to become the Chief Justice of India, similar to Justice Bagchi’s appointment by the Khanna Collegium. One of the biggest issues that emerges from this discussion is that ‘Kaun Banega Chief Justice of India?’ has become a lottery - a lottery whose outcome can be fixed only by the Collegium in consultation with the government. The chosen one will now be the Chief Justice of India with no other criteria to recommend him. For instance, The Leaflet’s data analysis shows that while appointing Justice Pancholi, CJI Gavai’s collegium overlooked many potential chief justices who were not only more senior to him, but could have improved the Court’s gender, caste, religious and regional composition.
The other truly dangerous precedent set by Justice Pancholi’s appointment is that the decision of the Collegium was not unanimous. If indeed a person can be appointed by the Collegium without the decision being unanimous, it would be a matter of time before individual members of the Collegium could be split along ideological lines, where the majority decides. Then, we will begin to see minorities within minorities. The sole woman judge in the Supreme Court, Justice B.V. Nagarathna, was also the sole judge to dissent on Justice Pancholi’s appointment, having the conviction to place on record her objections. Perhaps in this entire saga, Justice Nagarathna’s show of integrity and courage was the only redeeming factor. But even she did not , in her dissent, mention that successive Chief Justices had not corrected the gender imbalance in the appointment of judges to the Supreme Court of India.
Also notably critical about the Gavai collegium was its subservience to the executive on the issue of transfers. While the memorable example of Justice Atul Sreedharan’s transfer to the Allahabad HC showed the continuing timidity of the Collegium, the Gavai collegium interestingly stated explicitly that the decision was being taken “at the government’s request.” If there were any scope of being transparent about the immense pressure from the executive that the judiciary is functioning under, this was a show of that, and the Collegium gave us a glimpse into its own withering independence.
Although bulk appointments of judges have been made to the High Court of Bombay, many argue that under CJI Gavai's tenure, due care has not been taken to ensure that competent people are appointed.
The dangerous legacy of intra-court appeals
A further dangerous precedent that we have seen during the tenure of CJI Gavai is what could fairly be described as ‘intra-court appeals’. These consist of multiple instances where the Court either recalled or overruled decisions of other judges through constitutionally suspect mechanisms. At least three such instances pertained to decisions by the bench of Justice J.B. Pardiwala: first, in early August, when Justice Pardiwala’s bench directed that an Allahabad HC judge not be given the criminal roster until retirement (for allowing criminal prosecution in a civil case), CJI Gavai “requested” the bench to recall its adverse directions, which it did. Later, that same month shortly after Justice Pardiwala’s bench passed a problematic order to clear out Delhi’s stray dogs to relocate them to shelters and pounds, CJI Gavai, as ‘master of the roster’, referred the matter to a larger bench, which on August 22, modified the earlier order. One could argue that both these decisions ironically ended up with the same result that was being sought to be corrected: the deviation from judicial norms of functioning. The third, and most recent of such incident would be when a Constitution Bench led by him on Presidential Reference overruled the commendable judgment by Justice Pardiwala setting timelines for the President and Governors to act on bills passed by state legislatures using the Supreme Court’s power under Article 142. While the issue had obtained constitutional quietus, the Union succeeded in re-litigating its cause and the Court left India’s federal structure precarious.
There were other instances beyond those concerning Justice Pardiwala. Earlier this month, after a split verdict was delivered where Justice Sanjay Kumar wrote a strong verdict directing formation of an SIT, consisting of equal number of Hindu and Muslim officers to investigate the lynching of a teenage Muslim boy, CJI Gavai’s bench, on a mere mentioning by the Solicitor General, stayed Justice Kumar’s direction. In late July, a special bench led by Justice Gavai recalled a May judgment by Justice Bela Trivedi which had rejected a resolution plan by JSW Steel for Bhushan Power and Steel Ltd.
Few things reflect the devastating legacy of this regression jurisprudence than CJI Gavai’s decision earlier this week to recall, on a review petition, the Supreme Court’s progressive Vanashakti judgement, delivered by Justices Oka and Ujjal Bhuyan in May, which had struck down a 2021 EIA notification that allowed ex post facto grant of environmental clearance. The Vanashakti decision had been a welcome aberration to the Court’s consistently declining environmental jurisprudence. Justice Bhuyan’s dissenting note that the majority’s decision was “backtracking” on the Court’s own sound environmental jurisprudence carried a note of caution that must reverb with us.
Perhaps in this entire saga, Justice Nagarathna’s show of integrity and courage was the only redeeming factor.
Was there a coherent jurisprudential legacy?
CJI Gavai adjudicated over at least three politically, constitutionally significant matters. With the can of worms of the Places of Worship Act challenge temporarily put under cover, CJI Gavai extensively heard arguments on the Waqf (Amendment) Act, finally delivering an interim judgment in September. While the judgment stayed certain problematic provisions, it did not engage with several strands of issues that were raised, including the amendment’s abolition of the evidentiary concept of Waqf by User that the Court allowed to stand. Many have argued that the interim judgment accepts on face value certain misinformed narratives pushed by the State, such that Waqf is widely an instrument of encroachment by Muslims. Second, CJI Gavai’s bench commendably issued procedural safeguards against the egregious practice of investigating agencies like the ED summoning lawyers representing their clients, providing some relief to the bar. And third, CJI Gavai’s bench struck down the Tribunal Reforms Act, 2021, which allowed disproportionate power to the executive in the Search and Selection Committee that selected tribunal members - a move that bides well for judicial independence. He also left a track record of granting bail when the arrest itself was illegal for want of reasons communicated to the accused and stood thereby on the side of liberty .
However, by and large, one can conclude that the functioning of the Supreme Court lacked judicial and administrative discipline. It may even be pointless evaluating the legacy of CJI Gavai from the jurisprudential lens for the simple reason that his tenure was too short. Judging from the perspective of his performance in his parent High Court - Bombay High Court - there can be no doubt about the fact that he has a clarity of thought, simplicity of writing in his judgments and ability to deal with complex issues within manageable legal frameworks. His judgments continue to be leading judgments in the High Court of Bombay and no one can doubt his intellectual abilities.
The question that remains, however, is whether they were put to use in the Supreme Court? Or even, whether his tenure was too brief to be able to answer that question?
However, by and large, one can conclude that the functioning of the Supreme Court lacked judicial and administrative discipline.
A Dalit chief in a Hindu majoritarian India
What then is the difference between a judge who takes pride in his Hinduism - Justice Chandrachud and a Dalit judge who is secular - both of whom steered a constitutional court in a Hindutva State? Perhaps little in terms of safeguarding the independence of the judiciary or resisting executive pressure in the matter of appointment of judges. The ideological judge is here to stay.
The last thing I think I would like to say is that often a judge has to be judged not just by his tenure on the bench, but also by what he does post-retirement, which is the real giveaway. One has to await and see whether Justice Gavai enters the political fray as a major player. There are indeed very few options for a person who retires as the Chief Justice of India. Arbitration, though an available option, is often unsatisfying to ambitious people, especially for those who are politically ambitious or see their role as public intellectuals’.
Sixty-five is no age to retire and there is no doubt that Justice Gavai will continue to contribute to public life. It also remains an open question to see whether he will be accepted as a political spokesperson or leader within the Dalit community. Indications are that the community is critical of him for his judgment on sub-categorization of scheduled castes and more particularly his comments in relation to ‘creamy layer’ within the community. In September, Maharashtra chief minister Devendra Fadnavis has reportedly stated that the government is planning to introduce the creamy layer concept within the scheduled caste community, splitting the community down the line.
Justice Gavai took up the mantle as a Dalit head of judiciary in a Hindu majoritarian state, and in many ways his tenure characterised this complex positioning. The casteism he faced from the Hindu right for staying committed to his Ambedkarite ideology continues to show us why, especially in Hindu majoritarian India, we need more judges, more chief justices from marginalised, underrepresented communities. For who he was, and what he represented in terms of staying clear of right wing Hindu performance, the significance of having our judiciary led by judges not ideologically subservient to the ruling regime came out sharply.
The biggest challenge facing the Supreme Court of India is to maintain the independence of the Collegium system The new and emerging challenge is to lay down guidelines to the process of how the Chief Justice of India is selected. Perhaps one needs a Fifth Judges case for that, whose time is awaited.
While we welcome diversity of caste, class, gender and religion, whether under a Brahmin chief justice or a Dalit chief justice, or a yet-to-come woman chief justice, the judiciary’s performance will ultimately be judged not by his or her identity alone, but by the leadership provided in maintaining the institution’s independence. A moment of reckoning is still awaited.
Indira Jaising is a noted human rights lawyer and a senior advocate at the Supreme Court of India. She is also a co-founder of The Leaflet.
Courtesy: The Leaflet
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