Justice Khanna was committed to the Constitution but didn’t challenge a mighty executive

James C. Sheppard’s 1958 essay on judicial retirement has a captivating subtitle: “The age of judges and the judges of ages”. It’s to say that simply because a judge is retiring, it doesn’t make her or him a judge for the ages. This holds true in the case of Sanjiv Khanna, the 51st Chief Justice of India. 

Of course, Justice Khanna (as he then was) was part of Benches that delivered important judgements. In Subhash Chandra Agarwal (2019), he wrote about the instances in which the Right to Information Act, 2005 applies to his own institution, the Supreme Court. In Association for Democratic Reforms (2024), he penned a concurring opinion to convey that an electoral donor’s right to privacy can’t be privileged over an ordinary voter’s right to know. In Arvind Kejriwal (2024), he granted bail to a Chief Minister who was sitting in jail without trial as his party fought a General Election outside.

As Chief Justice, in Dr. Balram Singh (2024), he dismissed a petition challenging the incorporation of the words “secularism” and “socialism” in the Preamble to the Constitution. Then, in a socio-political atmosphere vitiated by communal mistrust, he carried out a rescue operation and prohibited the country’s courts from entertaining suits or passing orders in cases to do with the Places of Worship (Special Provisions) Act, 1991. 

Yet, many of these orders have one thing in common—they involved the affirmation of the constitutional text in contexts where there was no direct confrontation with the executive. When faced with an aggrandising executive ringing in large-scale and alarming transformations, he was less enthusiastic. This trend is well-illustrated by his decisions in two cases involving electoral reforms. 

Playing safe in two election-related cases 

In Association for Democratic Reforms v Election Commission (2024), a Bench led by Justice Khanna rejected a plea for 100 percent paper verification of votes registered by the Electronic Voting Machine system. The reasoning in this order was unconvincing, particularly since the system faced a credibility crisis and several advanced democracies had opted for a paper ballot approach because technology could be tampered with or misused. 

But the Order that crystallised his reticence to clip the wings of the executive on institutional capture was the one in Jaya Thakur (2024). (Disclaimer: I appeared in this matter.) A two-judge Bench led by Justice Khanna rejected the request for staying the appointments under the 2023-enacted Election Commissioners Act, which was facing (and continues to face) a serious constitutional challenge. 

Section 7(1) of this Act had been specifically enacted to nullify the decision of the Court in Anoop Baranwal (2023), which had asked for the CJI to be included in the three-member committee to choose Election Commissioners. The Act had unequivocally compromised the independence of the selection by establishing a committee consisting of the Prime Minister, a cabinet Minister and the Leader of the Opposition. 

Anoop Baranwal had clearly stated that when the government brought in a new law, it should be based on constitutional principles and preserve the independence of the selection committee. 

To justify not interdicting Section 7(1), the Khanna-led Bench in Jaya Thakur relied on the presumption of validity, which is admittedly an influential doctrine in traditional constitutional thought. But, by failing to account for the populist and sectarian majoritarianism of the present political moment, the Bench turned its face away from an argument I urged before it: that “presuming validity of the statute” had lost its relevance and rigour. 

In 1979, the scholar Martin R. Gardner had posed the question of whether “illicit legislative motivation” could be “a sufficient condition for unconstitutionality.” Now, in an era of divisive legislation, the concern noted by John Hart Ely (dating to the early 1970s) about the Constitution being used as “an instrument for punishing the evil thoughts of members of the political branches” is outdated and irrelevant. 

These two election-related pronouncements, based on conservative judicial thought, had the effect of reinforcing the idea that the ruling party’s incremental capture of electoral institutions was progressing at a clip. On a more practical level, its effects were seen in the skepticism around the process and outcomes of the General Election and assembly elections in Maharashtra and Haryana. 

No direct confrontation with the executive 

Indeed, there have been decisions where Justice Khanna took a strong position on issues in which the State has an interest. For instance, his refusal to quash the FIRs against news anchor Amish Devgan for comments criticising the Sufi saint Khwaja Moinuddin Chishti can claim its place in the jurisprudence on hate speech. 

His partial dissent in Rajeev Suri (2021)—the Central Vista project case—was also remarkable in the way it detailed the violation of due process by State-run bodies. In this opinion, he emphasised the citizen’s right to know about official activity and the government’s obligation to provide such information. 

In Shilpa Sailesh v Varun Sreenivasan (2023), a Bench led by him invoked Article 142 to dissolve a marriage that had “irretrievably broken down” despite the lack of a ‘no-fault’ ground in the Hindu Marriage Act, 1955. 

Still, none of these matters involved a confrontation with the executive—what American legal scholarship has often referred to as the “most dangerous” branch of the State. One may argue that the Central Vista case comes close, but there, the impact was softened because it was a dissent and, ultimately, the Central Vista project is not one that directly involves the transformation or capture of an independent institution. 

In the challenges against the Waqf (Amendment) Act, 2025, too, CJI Khanna may not have been as defiant as appears at first glance (and as has been lauded by some assessors of his legacy). He secured an oral assurance from the Union that some contentious provisions of the Act would not be operationalised until the next hearing. Yet, several matters remain up in the air, such as whether the Act could be interpreted to resolve rights violations in Munambam, Kerala, where residents face eviction due to the alleged waqf nature of their properties.

CJI Khanna as administrator 

On the administrative side, there’s a lot to commend for how CJI Khanna handled the ‘cash-in-residence’ controversy around Justice Yashwant Varma, formerly of the Delhi High Court. He was prompt in commissioning a preliminary investigation by the CJ of the Delhi High Court and publicly releasing the report of that prima facie inquiry (including Justice Varma’s response). 

He was also quick to constitute a three-member judicial committee for the ‘in-house inquiry’ and place its report before the Prime Minister and President with a recommendation, reportedly, for initiating impeachment proceedings. Even as many questions about the “partly burnt cash” linger (the in-house committee’s report has not been made public), it can be said that CJI Khanna did his bit to ensure transparency.  

In one important aspect as Master of the Roster, however, CJI Khanna fell short. He constituted and heard only one Constitution Bench in his tenure. Six months may be a short period but it is not insufficient for dealing with substantial questions of law that have been long pending. In his term of merely two-and-a-half months, CJI U.U. Lalit had listed several Constitution Bench cases, including the one related to reservations of Economically Weaker Sections. CJI Khanna could have done the same, particularly with cases like the validity of the sedition law, which could have decided the fate of hundreds of pending cases. He could also have also designed a deadline-driven scheme for finally disposing of cases like Jaya Thakur, which have a direct link with democratic process. 

A moderate judge in radical times

Justice Khanna was a soft-spoken and well-mannered judge, never seen as aggressive and arrogant, on or off the Bench. His judicial behaviour was commendable and he had a reputation for not discriminating between lawyers, irrespective of their seniority or stature. 

He was also prolific and committed, authoring over 110 judgements in his six years as a puisne judge. He maintained his respect for the Bar throughout, which, as Justice V. R. Krishna Iyer once noted, is the biggest judicial asset. His announcement that he won’t accept a post-retirement position can be seen as another sign of his integrity. 

Yet—during a time when courts across the world are “abusing judicial review” (in the words of David Landau and Rosalind Dixon) by supporting and abetting the clandestine executive, during a time when feudal traits and glaring inequality in both Bar & Bench are writ large, judges are expected to take on bigger responsibilities. 

CJI Khanna was not one of these radicals, so he leaves the Court as a moderate with a mixed track record. His doctrinal commitment to the conventional and theoretical side of the Constitution is commendable, but one wishes he had adapted his constitutionalism to contend more fruitfully with a mighty, ascendant executive. 

Kaleeswaram Raj is a lawyer at the Supreme Court of India.