The Supreme Court of India stands on a triangular plot of 17 acres in central Delhi. It is built to resemble—from an aerial view—weighing scales, representing justice. The central wing, from which the scales hang, consists of 15 courtrooms. The right wing contains the offices of the attorney general for India and the solicitor generals of India, as well as the bar-room for lawyers, and a library. The left wing contains the administrative offices of the court.
Under the central dome of the building is the court of the Chief Justice of India. As the administrative head of the Supreme Court, the chief justice wields immense power over the functioning of the court. They decide what matters will be heard by which bench—or whether a matter will be heard at all.
The chief justice’s courtroom has wood-panelled walls and a high ceiling, from where around a dozen fans hang low, spinning slowly. The judges sit on high-backed chairs lined with red velvet, placed on a raised platform under the seal of the Supreme Court. Arguing counsels sit on a bench on the floor about 15 feet away. Behind them are a few rows of chairs, usually occupied by other lawyers; further behind are two visitors’ boxes. A sense of occasion befalls the visitors when they come in; lawyers bow before leaving the room.
Between the judges and the arguing counsels’ bench are tables stacked with rows of thick hardbound volumes, which also line shelves along the walls of the courtroom. These are the “Supreme Court Cases” volumes—yearly reports of the judgements delivered by the 44 judges who have presided over this court, and their colleagues. Over the years, these judgements have addressed questions such as whether the state has the power to curtail fundamental rights; whether election candidates can ask for votes in the name of religion; and whether homosexuality is a crime. The history of the Supreme Court is recorded in all its glory and shame in these pages.
The powers that the constitution confers upon Supreme Court are vast. Among other kinds of cases, it can hear appeals arising from disputes in the various high courts of the country; disputes between states, or between a state and the centre; and public-interest litigations filed directly before it by citizens or groups. One of the most far-reaching duties of the court is to examine the validity of laws passed by the legislature—including amendments to the constitution of India.
Occasionally, the Supreme Court’s exercise of its power to review laws stokes conflict between the judiciary on the one hand and the executive and legislature on the other. Such was the case on 16 October 2015, when a five-judge bench led by Jagdish Singh Khehar struck down the 99th constitutional amendment.
The amendment, the National Judicial Appointment Commission Act, proposed to set up a body—the National Judicial Appointments Commission, or NJAC—to make appointments to the high courts and the Supreme Court. The commission would comprise representatives from both the government and the judiciary and two “eminent persons.”
The NJAC Act was intended to replace the collegium system of judicial appointments, which was laid down by the Supreme Court itself, in 1993. The introduction of the collegium system was, in many ways, an usurpation of power. The constituent assembly had been careful not to vest the power of appointing judges to either the judiciary or the executive alone. BR Ambedkar, the primary architect of the constitution, advocated a middle road, whereby the executive would make appointments in consultation with the judiciary. With its 1993 judgement, the Supreme Court clipped the executive’s powers over judicial appointments.
After its sweeping victory in the 2014 general election, the Bharatiya Janata Party-led National Democratic Alliance government, under Narendra Modi, had moved quickly to pass the amendment to set up the NJAC. It was the first law passed government after coming to power, and made clear that the executive was determined to wrest control over judicial appointments. But it was halted in its tracks by the Supreme Court’s judgement, which declared the act “unconstitutional and void.” At least for the foreseeable future, the judgement ensured that power over appointments would remain with the judiciary.
The executive seethed with indignation. The attorney general for India, Mukul Rohatgi, called the judgement “flawed”; the law minister, Ravi Shankar Prasad, described it as “a setback for parliamentary sovereignty.”
But though in his judgement Khehar penned a spirited defence of the collegium system, he also conceded that it needed to be re-evaluated. In subsequent hearings after that judgement, the bench considered ways in which the system could be improved; it sought suggestions from lawyers, academics and even the general public. On 16 December 2015, two months after striking down the NJAC Act, the bench directed the government to come up with a new memorandum of procedure, or MoP, for the appointments, to replace the existing selection procedure.
This apparent conciliatory measure did little to placate the executive. Though by the collegium system, judges select judges, they are technically appointed by the president—effectively, the executive. For the remainder of the term of the then chief justice, TS Thakur, the cabinet did not clear any appointments. The number of judicial vacancies and the courts’ arrears skyrocketed. During a speech at an event in Delhi in April 2016, also attended by Modi, Thakur was moved to tears while appealing to the prime minister to clear the appointments.
Tensions remained high months later, at an event to mark Constitution Day, on 26 November 2016, attended by the law minister and the attorney general, both of whom sniped at the Supreme Court in their speeches. “The courts may quash the order of the government, courts may set aside a legislation,” the law minister said. “But the governance must remain with those who are elected to govern.” He also remarked that the Supreme Court had failed the country during the Emergency. The attorney general during his speech warned that the “judiciary must realise that it also has a lakshman rekha like others. Greater the power, greater the need for circumspection.”
Then, Khehar took the lectern. He was due to take over as chief justice in about a month, and there were no signs that the fraught relationship between the judiciary and the executive would ease with him at the helm. Khehar spoke of how the judiciary had since Independence struck down “unprincipled, self-serving and reprehensible” amendments passed by the government. He cited the 39th amendment, passed by Prime Minister Indira Gandhi during the Emergency to put her own election beyond the scrutiny of the courts. He then referred to “certain recent constitutional amendments which had elements of interference with judicial independence.” The Supreme Court, Khehar said, had “consistently tried to uphold the basic ethos of the constitutional philosophy.”
“This,” he then said, addressing the attorney general directly, “is the lakshman rekha that you seek.”
*
The first Sikh to become the Chief Justice of India, Khehar has the air of a taskmaster about him. He keeps his whitening beard trimmed and wears frameless spectacles, the tips tucked into his turban. He ties his turban in a compact, angular style typical to East-African Sikhs—he belongs to a family that immigrated to Kenya, and spent many years of his early life there, before returning to Chandigarh.
He built his career as a lawyer in Chandigarh, before being elevated to judgeship in 1999. After more than a decade as a judge in high courts, Khehar ascended to the Supreme Court, in 2011. Here, he delivered the judgements that gave him a reputation as a bold and uncompromising judge. He jailed Subrata Roy of the Sahara Corporation after he failed to repay the money he owed investors, and failed to appear before the Supreme Court despite several summons. He defined the philosophy that should underlie procedures for allocation of natural resources by the government. He restored a Congress government in Arunachal Pradesh after the BJP government at the centre attempted to topple it. His judicial reasoning has suggested that he sees the Supreme Court as an institution to keep in check all other organs of governance.
Khehar was sworn in as the chief justice on 4 January. He has a short tenure of less than eight months in the post. On 28 August, he will turn 65 years old, and as per the constitution, retire from the Supreme Court.
Though he has in the past delivered several judgements that were unfavourable to the BJP, the executive seemed to warm up to Khehar considerably after his ascension to the top post. The prime minister has publicly acknowledged his appreciation of Khehar, and the chief justice has assured the government that the Supreme Court would not step on the parliament’s turf. While the thorny question of judicial appointments remains unresolved, Khehar’s term has seen some signs of a thaw between the two institutions. How this truce was reached was a question that came up repeatedly in conversations I had with several senior advocates in Delhi and Chandigarh as well as several former high court and Supreme Court judges.
[TWO]
One of Khehar’s first decisions in the office of chief justice attracted some controversy. On 4 January, after his oath-taking ceremony, Khehar sat on a three-member committee to select a new director for the Central Bureau of Investigation—a role that had been filled by an acting director after the retirement of the previous chief, Anil Sinha, in December. The other members of the committee were Prime Minister Modi and the leader of the opposition, the Congress’s Malikarjun Kharge. Along with the prime minister, Khehar voted for the Delhi police commissioner, Alok Verma, an officer who had never worked in the CBI. In the past, questions had been raised about Verma’s tenure as the police commissioner, during which 13 members of the ruling Aam Aadmi Party in Delhi were arrested on tenuous grounds.
Less than a month earlier, a petition in the Supreme Court had challenged the appointment of Rakesh Asthana as the CBI’s acting director. Asthana had been given the post after cutting short the tenure of the agency’s then senior-most officer, RK Dutta, who was shifted to the home ministry. Dutta had been overseeing some of the agency’s most sensitive investigations, including into the 2G spectrum allocations—the Supreme Court had earlier directed the government not to shift any officers involved in that and certain other probes. Now, a bench of Justices Kurian Joseph and Rohinton Nariman demanded to know why the “senior-most officer RK Dutta, supervising high profile 2G and coal scam cases” was shifted out of the CBI “without the nod of this court.” Tushar Mehta, an additional solicitor general, replied that a meeting of the selection committee to appoint the agency’s new director would be convened soon.
Hours after Verma’s appointment, Kharge issued a statement against it. “I gave my opinion in writing,” he told the Indian Express. “I said a person who fulfils all the conditions should be appointed. A person who has a long service record should be appointed. I said all rules and procedures should be followed and a person who has worked in the CBI, on corruption cases, should be given the post. They have ignored that.”
The activist lawyer Prashant Bhushan filed a petition to obtain the minutes of the selection committee’s meeting, to ascertain whether Verma’s appointment has been made in accordance with the procedure laid down by the Supreme Court. Two weeks later, on 20 January, the government’s lawyers argued fervently in the Supreme Court against the disclosure. “Where is the question of placing the minutes of meeting now?” Rohatgi said. “A decision has been taken and order has been issued.” Then, he turned to Bhushan and said, “Why are you pushing for something which is over? There is no question of placing the minutes of the meeting.” Mehta added that the committee comprised the prime minister, the chief justice, and the leader of the opposition and “their wisdom cannot be questioned.”
The petition was dismissed. In response to Bhushan’s assertion that the selection committee was not convened in December despite the fact that Sinha had retired on 2 December, the bench, comprising Justices Kurian Joseph and AM Khanwilkar, reminded him that there had been a “change of guard” in the office of the chief justice.
Earlier in January, Khehar had directed the government to audit the accounts of the more than 32 lakh NGOs functioning in the country. “I am ashamed that the Supreme Court is now going to be a party to this crackdown on the NGOs,” a former member of the higher judiciary told me. “I mean they are aware that this government is persecuting NGOs of a particular philosophy, that do not align with the stand of the government on a given issue. They are aware, and in spite of that they have passed an order like this.”
Towards the end of Khehar’s first month in office, the judiciary witnessed an unprecedented episode of internal strife. CS Karnan, a Calcutta High Court judge who had previously alleged caste bias in the judiciary, wrote to the prime minister, naming 20 sitting and retired judges that he claimed were corrupt, and demanding an investigation. In response, for the first time in history, the Supreme Court initiated contempt proceedings against a sitting high court judge. Karnan remained defiant; in response, he passed orders against the seven judges on the bench and asked them to appear before him.
Finally, in May, the bench held Karnan guilty of contempt of court, and sentenced him to six months in prison. Simultaneously, the bench directed “that no further statements made by him should be published hereafter” in the print or electronic media.
“When the only weapon you have is a hammer, every problem looks like a nail,” the lawyer and writer Gautam Bhatia noted in an article for Scroll. “The order is neither narrow in scope, nor in its duration: it is, in the true sense of the word, a blanket gag order.”
“There is something particularly disturbing about punishing a man not for what he has said, but for what he might say (we are dangerously close to the realm of thought-crimes here),” Bhatia continued. “There is something particularly disturbing about taking the choice and judgment away from the media about what to report and what not to report, to decide for themselves what statements might be legal and what illegal, and imposing a blanket ban on reporting anything one individual might say, in advance.”
Khehar’s second month in office saw him at the centre of a particularly stormy controversy. It began with the circulation over WhatsApp of a note allegedly written by the late Kalikho Pul, a former chief minister of Arunachal Pradesh, who allegedly committed suicide in August. In a complex series of political developments that unfolded over 2015 and 2016, Pul had been expelled from the Congress, after which he topped the party’s government in the state, and then, in February 2016, took charge as the chief minister at the head of a BJP government. But his government was dismissed by a July 2016 Supreme Court judgement, delivered by a bench headed by Khehar, which restored the Congress government in the state. Less than a month later, Pul was found hanging in the chief minister’s official bungalow in Itanagar, the state’s capital. Pul had allegedly typed a 60-page suicide note in Hindi, in which he levelled allegations against several Congress politicians, including President Pranab Mukherjee, of corruption. The note contained allegations against judges, too—it claimed that Khehar’s son Birinder and Aditya Mishra, the son of the second senior-most Supreme Court judge Dipak Mishra, had approached Pul and asked for Rs49 crores and Rs37 crores respectively, to pass a judgement in his favour.
The note did not provide any evidence to support these claims, and most people I spoke to for this story did not seem troubled by the allegations. “The government does not like a strong, strict and independent judge,” a senior Supreme Court lawyer told me. “And there are always efforts to undermine the credibility of a judge from the political class—so we should be very careful about how we think about that note.” But almost everyone was disturbed by what followed.
In February, Pul’s wife, Dangwimsai, wrote a letter to Khehar, requesting permission for an FIR to be filed against the judges named in the note. “I am sure that you will have the matter placed before the appropriate judge in accordance with the judgment in the Veeraswami case,” Dangwimsai wrote, referring to a 1991 case in which the Supreme Court ruled that judges of the high courts and the Supreme Court could be probed for corruption, but only with the prior permission of the Chief Justice.
The letter, which requested an administrative action and not a judicial one, put Khehar in a tricky position. There would have been a clear conflict of interest if he handled it himself, since he was named in Pul’s note. In the interest of transparency and fairness, he was obligated to pass the request on to the next senior-most judge, Dipak Misra. Since Misra, too, was named in the note, the letter should have been dealt with by the next senior-most judge, Jasti Chelameswar.
Instead, Khehar chose to convert the letter into a criminal petition, and list it before a bench of Justices UU Lalit and AK Goel. The senior lawyer Dushyant Dave appeared before the bench on behalf of Dangwimsai.
On the morning of 23 February, court number 13, where the matter was being heard, had an audience that spilled out into the corridor. Dave, in his characteristically animated manner, began, “We had sought an administrative direction, why was it taken on the judicial side?” he said. “We want to know the reason behind it. Why is the chief justice not precluded from taking a decision on the letter as the allegations in the suicide note concerned the CJI’s son?”
Then Dave said something ominous: “There was a development on Monday evening. A former judge of the Supreme Court met me on behalf of the CJI. I do not want to say more. I beg your lordships to stay away from this case.”
The veracity of the claims Pul made in his letter was now a secondary question. Rather, it became a story about the procedural flaws in Khehar’s handling of an administrative matter that involved serious allegations of corruption at the Supreme Court. In March, a former judge of the Supreme Court had matter-of-factly acknowledged the existence of lobbies in the Supreme Court, and that these lobbies have influence even after retirement. “We will now approach the vice-president for relief as the suicide note contains allegations against the president also,” Dave told the court. “If the Supreme Court decides on the letter after converting it into a writ petition, then all other avenues for remedies will be closed.” The bench allowed Dangwimsai to withdraw the petition. She has since presented her case to the vice president of India.
A few days after the hearing, Dave told me that he found the manner in which the matter was handled deeply disturbing. “I understand the CJI trying to deliberately bury the petition since he is named in it,” he said. Referring to the fact that Khehar and Goel had known each other since their days at the Punjab and Haryana High Court, he said, “Why did Justice Goel not recuse himself? I have no doubt that Justice Goel was aware of what the CJI had done—he was biased and hostile during the hearing.” In March, Dave told the website Bar & Bench in an interview, “It is too serious a matter. The charges are very, very serious and they really go to the very foundation of the Supreme Court, which has now been shaken because of this.”
Birinder Singh Khehar, who allegedly approached Pul to ask for money, is the youngest son of Khehar and a lawyer practicing at Punjab and Haryana High Court. Senior lawyers in Chandigarh, and I met over a dozen, told me that Birinder, like his two elder brothers, is earning well from the practicebut his success has nothing to do with his court-craft or knowledge of law. “InmeKhehar-saabwalibaatnahihai, aurinkakaamsirfKhehar-saabkenaampechalrahahai,”one senior advocate told me.During the course of conversations about Pul’s allegations against Birinder with more than a dozen senior lawyers in Chandigarh, the term “uncle judges” came up repeatedly—the term, acknowledged by the Law Commission of India in its 230th report to the Law Ministry, in 2009, refers to a phenomenon whereby judges’ kin receive preferential treatment in courtrooms.The high court of Punjab and Haryana is one of the worst examples.“But then,” another senior advocate said, “this happens with the children of every judge in the Collegium.” The term also came up in connection with the arrest in December of Rohit Tandon, a Supreme Court lawyer and the son of a former judge of the Punjab and Haryana High Court. Tandon was arrested for money laundering by the Enforcement Directorate, which is overseen by the finance ministry.
When I spoke to Birinder on phone in March, he denied having any knowledge about the matter whatsoever. “Who is that?” he replied when I asked for a comment on Pul’s allegation against him. In a five-minute conversation, he asked me for the name of my sources at least five times.
Yet, the Chief Justice has done nothing to negate these doubts. To wait for the allegations of active impropriety to be washed by the passage of time is a habitual practice of the executive and the legislature,
The framers of the constitution expected the judiciary to display a significantly higher degree of honesty than politicians. In September last year,I met GS Singhvi, a former judge of the Supreme Court, at his house in Delhi. He was the least talkative person I met in the course of my reporting, and he made it clear that he does not “like to opine on the wisdom of x or y or z.” During our hour-long conversation, we touched on the question of the ideal conduct of a judge. According to Singhvi, it was not sufficient “that judges should be honest. But their conduct must be above board in all respects.”
[THREE]
Khehar was born on 28 August 1952 in Nairobi, the capital of Kenya, then a colony of the British Empire. His family moved to the newly created Chandigarh when he was still in his early days of schooling. By the accounts of people who have known him since then, Khehar’s family was financially comfortable and bought a house in sector 21, where several Sikh immigrant families from Africa also resided.
Khehar joined the Government Model Senior Secondary School in sector 16. Mark-sheets and other detailed records from that time are not available at the school now, but the principal was able to find an entry in an old register that said Khehar left the school after “having satisfactorily completed standard 7th.” The register records his reason for moving out of the school as “leaving the country.” A lawyer in the Punjab and Haryana High Court who knew Khehar in Kenya and later worked with him as a junior lawyer told me during a free-flowing conversation that Khehar was an excellent hockey player and represented Nairobi in a number of tournaments. These snippets of information suggested that the family moved back to Kenya for a period after their return to India. But when I sought another appointment with the lawyer to confirm the details of his account, he refused to meet me.
In 1974, Khehar joined Panjab University to study for an LLB, or bachelor’s law degree. Balram Gupta, who taught Khehar constitutional law at the university and now heads the National Judicial Academy in Chandigarh, told me that Khehar came to the university after finishing a bachelor’s degree in science. Khehar completed his LLB in 1977, and continued to study at the university for his LLM, or master’s law degree.
Virendra Kumar, a soft-spoken, mild-mannered and thin-framed man who also taught Khehar at the university and later served as the chairman of the law department, remembered Khehar visiting his house after classes and on holidays to discuss his studies. A lawyer whose father owned a shop in Khehar’s neighbourhood remembered him “zipping across the streets” on “those racing-type bicycle with slim tyres.”
Khehar’s college years overlapped with the period of the Emergency and its aftermath, and the university campus was growing increasingly politicised. In 1977, the university for the first time held direct elections to form a student body. I came across no anecdotes that suggested that Khehar was involved in this campus politics. According to Gupta, his fields of interest were moot courts and debates. “He was most keen to nurture his communication skills wherever he could,” Gupta said.
But reverberations of the Emergency were felt even in the classroom. “Obviously we discussed everything that was going on in the country at that point of time,” Gupta told me. “There were about 30 students in the LLM course and the debates kept happening. The common thread was that this is something shocking. In classes we talked about how a situation like this could have been avoided. We talked about the role of lawyers and of judges.” In 1979, Khehar finished his LLM degree, topping the university.
Khehar started practicing law as a junior with Jawahar Lal Gupta, then one of Chandigarh’s leading lawyers practicing service law—the field of law that deals with matters related to public employment, including issues of appointments, promotions, terminations and pensions. Gupta would go on to become the chief justice of the Kerala High Court.
At the time, Khehar did not have a library of his own. “He used to go to JL Gupta’s house every time he needed to refer an old case or another book,” a lawyer in Punjab and Haryana high court told me. Khehar’s father, who had held a government job in Kenya’s postal services, did not approve of this situation. “One day his father had had enough of it,” the lawyer said. “He asked how much does a library cost. At that time, it was something like twenty-thirty thousand—a big sum in those days. And soon enough a library was built for him at home.”
Despite benefiting from this paternal generosity, according to Balram Gupta, Khehar did not want to be financially dependent on his father, and decided to work at the university after he had completed his studies. “I think that was one of the reasons why he took up the job of a visiting faculty at the university,” Gupta said. Khehar started teaching in 1980, while he was still working as a junior with JL Gupta. He taught evidence law and received a salary of Rs600 per month. Last year, speaking at Panjab University, Khehar declared that he couldn’t explain in words how much he enjoyed getting this money, most of which he spent on movies and at restaurants. He continued to take guest lectures at the university until 1986, turning down Virendra Kumar’s offers to join as a full-time professor. By this time, he had quite Gupta’s practice, and set up a private practice.
A former judge of the Punjab and Haryana High Court told me that a significant portion of the litigation in Chandigarh related to land and service law. Khehar’s specialisation was, therefore, one of the most profitable streams of practice. He benefited considerably from the elevation to the high court of Mangat Rai Agnihotri and Kuljeet Singh, two senior lawyers in the same field who were technically his competition. In 1991, when Jawahar Lal Gupta was also elevated to the bench, Khehar’s clientele surged even further.
By all accounts, Khehar was a hard worker. Varinder Singh Chandok, a lawyer whose family lived in the house next to Khehar’s, told me that he once snuck into Khehar’s house at around 2 am, expecting to find him asleep, only to see him hunched over his desk, surrounded by case files and reference books, making notes. Another lawyer who joined Khehar as a junior around this time told me that he only took one day off in the week. “He never worked on a Friday,” he told me. “He used to say that, ‘We work throughout the week—there should at least be one day to enjoy that work’s benefits.’”
Khehar did, indeed, seem to relish the little leisure time he had. Once, this lawyer told me, Khehar put his juniors, who had come with their lunches packed for the work-day, in his car—a Maruti 800 with a registration plate that matched his house number, 2206. They drove towards Simla, “but we never ended up reaching there,” he said. “We just found this spot somewhere in the hills and sat there drinking beers and vodka till the end of the day.”
Chandok, who still refers to Khehar as “sir,” also remembers him as something of a fitness freak. He recounted that late one night, during a get-together in the Nepli forest reserve, on the outskirts of Chandigarh, Khehar convinced people to compete with him in sprints—and outran them. “Even after becoming a judge, sir used to go for his run” by Chandigarh’s Sukhna lake, Chandok said. “It was quite a sight to see gun-wielding security men sprinting behind him, trying to keep up.”
Even in those days, Chandok recounted, Khehar was a stickler for discipline. “He had this art of getting people in order—a decorum had to be maintained around him,” he said. “And he himself was the standard—you would never find him indulging in loose-talk or even sitting inappropriately in his own house. He has a very British personality that way.”
Chandok told me that Khehar would gently reprimand juniors who referred to his citation registers—large journals in which lawyers record the details of important judgements that they might need to cite in their own cases. Chandok said Khehar would tell them, “You might win the case by doing that, but what have you learned if you haven’t browsed through these books yourself?” Khehar, he added, would often say, “There are no short-cuts to success—it happens step by step by step.”
Khehar was appointed as an additional advocate general for Punjab in January 1992. He was by this time making enough money in his private practice to find the pay offered to him by the state of Punjab paltry. According to a lawyer who was close to Khehar, he never took the monthly salary of Rs2,200. Soon, he was appointed to the position of senior standing counsel for Chandigarh.
In 1993, Khehar worked on the most important case of his career up to that point, assisting Kapil Sibal in his defence of V Ramaswami, then a judge of the Supreme Court of India, and the first judge in India against whom removal proceedings had been initiated.
In February 1995, Khehar was designated a senior advocate by the Punjab and Haryana High Court. In the years that followed, he became a leading authority on service law in Chandigarh. Another lawyer in the Punjab and Haryana High Court told me that even the bench sometimes sought his professional expertise in service matters. In February 1999, Khehar was appointed as a judge in Punjab and Haryana High Court.
Speaking in April at the closing ceremony of the year-long celebration of the Allahabad High Court’s, sesquicentennial, or one-hundred-and-fiftieth, anniversary, Khehar said that when he became a judge, he knew nothing about the law beyond service matters. “Sirf ek field law ki aati thhi bas, usme hum sab bata sakte thhe,baaki kuchh nahi aata thha,” he said—I knew this one field of law, and that I knew fully, but nothing other than that.
With his elevation to the bench, Khehar moved to a house in the judges’ quarters in Chandigarh’s sector 4, next to the house of GS Singhvi, who would later be his colleague in the Supreme Court also. Singhvi told me that, as a senior judge, he gave Khehar some guidance during in his early years on the bench, particularly since he was interested in learning how to conduct himself as a judge. “The only advice I gave him was that to move in a straight line,” Singhvi told me. “Don’t look left, don’t look right. See what justice demands.” According to Singhvi, during this time, Khehar was also gaining an interest in constitutional law.
Khehar spent nine years as a judge in the Punjab and Haryana High Court, during which he wrote more than 200 judgements. Lawyers who appeared before him remember Khehar as a cooperative, soft-spoken judge who encouraged junior lawyers to step up and argue cases. Many lawyers recalled that he held court the day after his father passed away.
In 2004, the Punjab and Haryana High Court witnessed an unprecedented debacle, when, according to a story in Frontline, 25 out of its 28 judges went on leave without providing any explanation to Chief Justice BK Roy. “What precipitated the Judges’ decision to ‘strike’ was the notice sent by Chief Justice Roy to two colleagues seeking their explanation for accepting honorary membership in the Forest Hill Golf and Country Club near Chandigarh,” Frontline reported.
During the hearing of a petition concerning the alleged illegal construction of the club on forest land, the report stated, the club submitted a list of the names of VIPs who had been given honorary membership. Roy saw on the list the name of two judges of the high court. When he demanded an explanation from those judges, they responded by saying that he had no jurisdiction to hold them to account for their membership of the club. Other senior judges came to their defence and, eventually, 20 judges, standing in solidarity, sent a letter of protest to Roy.
I wanted to know what role, if any, Khehar played in the episode. But lawyers in Chandigarh refused to talk about it. Some told me that they simply did not remember, some said they never learnt what happened. One senior advocate, after admitting that he had been privy to the matter, declined to say anything about it, insisting that it was “ancient history.” When I brought this question up in the meeting with Balram Gupta, he replied that the only judges who did not strike were the chief justice and Justice Surya Kant, who heard the petition about the construction of the club. “Every judge of the court, except for the one who was hearing the petition with the Chief Justice abstained from work,” Gupta said.
In May 2009, Khehar headed a three-judge bench that passed a judgement defining the identity of a Sikh. The lead petition was filed by a young woman named Gurleen Kaur and others who had been denied admission in a medical college run by the Shiromani Gurdwara Parbandhak Committee on the grounds that they plucked their eyebrows or trimmed their beards, acts which, the body said, went against the tenets of the Sikh religion.
During the hearing of that case, the court received letters from across the world suggesting that a court had no business to weigh in on the beliefs and tenets of Sikhism. But in the judgement, Khehar defended judicial intervention in matters of religion and pronounced a verdict that is striking for its conservatism. The bench held that “retaining hair unshorn is a fundamental tenet of the Sikh religion and a Sikh is the one who kept unshorn hair and does not trim beard or plucked eyebrows.”
The judgement further noted, “Looking for an approach which would make a religion more acceptable to the present social order, or the presently acceptable humanistic approach, is what those professing a religion would like to resist. Religion has to be perceived, not as liberals and as others think of it, but as it is, without any change or modifications.”TK
After having served as the acting chief justice of Punjab and Haryana High Court twice, in November 2009, Khehar was elevated as Chief Justice of the High Court of Uttarakhand, at Nainital. After brief stints at this court and the Karnataka High Court as the chief justice, in September 2011, Khehar was elevated to the Supreme Court.