In total, Justice Rao authored 222 judgments, and had been part of the bench in 747 judgments during his tenure in the Supreme Court. As a presiding judge, he was known for his liberal interpretation of the Constitution, and defence of the basic structure of the Constitution in letter and in spirit.
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JUSTICE L. Nageswara Rao retired on Tuesday after a tenure of six years in the Supreme Court. He was also a part of the five-judge Collegium. He was appointed to the bench of the Supreme Court on May 13, 2016, along with Justices A.M. Khanwilkar and D.Y. Chandrachud. Justice Rao was the seventh judge in the Supreme Court who was appointed directly on the bench from the Bar.
Before his appointment on the bench, Justice Rao had a lucrative practice at the Supreme Court. In 2014, then Chief Justice of India (‘CJI’) R.M. Lodha had offered Rao the judgeship but he turned it down, citing various personal and professional reasons. However, two years down the line, he was again offered the judgeship by the then collegium led by CJI T.S. Thakur. This time, he accepted the offer.
Justice Rao hails from Prakasam district in Andhra Pradesh. He got himself enrolled as an advocate in 1982 at the Bar Council of Andhra Pradesh, and practiced at the district court, Guntur in Andhra from 1982 to 1984. From January 1985 to December 1994, Justice Rao practiced at the High Court of Andhra Pradesh, in Hyderabad. He shifted his base to the Supreme Court from 1995 onwards. In 2000, he was designated as a senior advocate by his parent high court. He served as Additional Solicitor General of India from August 2003 to May 2004, and again from August 28, 2013, to December 18, 2014.
During his six years’ tenure, Justice Rao had been a part of various landmark judgments as well as contentious cases. In total, he authored 222 judgments, and had been part of the bench in 747 judgments. He also joined the Supreme Court Collegium by virtue of his seniority on August 11, 2021.
In 2017, Justice Rao was part of a seven-judge Constitution bench in Abhiram Singh versus C.D Commachen (Dead) by Lrs. & Ors., which held by a majority of 4:3 that appealing to the ascriptive identities of any candidate as well as voters constitutes a ‘corrupt practice’ under Section 123(3) of the Representation of the Peoples’ Act, 1951. Justice Rao was part of the majority judgment. He was also part of a seven-judge Constitution bench in Krishna Kumar Singh versus State of Bihar (2017) that held that the re-promulgation of ordinances is unconstitutional and a fraud on the Constitution.
In February 2020, Justice Rao was a part of a nine-judge Constitution bench that upheld the decision of the Sabarimala Review Bench to refer to a larger bench of the Supreme Court questions on the ambit and scope of religious freedom practised by multiple faiths across the country. The nine-judge bench framed a total of seven questions for determination relating to the ambit of right to freedom of religion under Article 25 and the interplay between the rights of a religious denomination under Article 26 of the Constitution, and the scope of judicial review with regard to religious practices. The matter was to be heard on merits from February 17, 2020; however, the Covid-19 crisis marred the hearing. Since then, the bench has not been reconstituted even as five judges of this nine-judge bench retired, and one expired.
Also read: Sabarimala Review: The curious case of Review Petitions’ Adjudication
In May 2021, a five-judge Constitution bench, of which Justice Rao was a part, struck down reservations to the Maratha community in educational institutions and public services provided by the Maharashtra government by declaring them as educationally and socially backward. He was also part of the majority decision in the same case that held the Centre alone, and not the states, had the power under the 102nd Constitution Amendment to identify and list Socially and Educationally Backward Classes (‘SEBCs’). However, this latter part was sought to be undone by Parliament by clarifying that state governments and Union Territories were empowered to prepare and maintain their own State List/Union territory List of SEBCs.
In March 2020, Justice Rao authored a landmark judgment in Indian Social Action Forum versus Union of India holding that support to public causes by resorting to legitimate means of dissent like bandhs and hartals could not deprive an organisation of its legitimate right of receiving foreign contributions under the Foreign Contribution (Regulation) Act.
“Any organisation which supports the cause of a group of citizens agitating for their rights without a political goal or objective cannot be penalized by being declared as an organisation of a political nature”, he said. The bench also comprised Justice Hemant Gupta.
A bench headed by Justice Rao during the COVID-induced national lockdown of 2020 directed state governments to ensure that dry ration was provided to sex workers without insisting on any proof of identification. In the same case, the Justice Rao-led bench recently issued a slew of directions concerning rehabilitation measures of sex workers, holding that basic protection of human decency and dignity extends to sex workers and their children.
A Justice Rao-led bench also came to the rescue of senior journalist Patricia Mukhim, who was booked for her Facebook post condemning atrocities on non-tribals in Shillong. The bench quashed a first information report against Mukhim even as it denounced the stifling of free speech by implicating citizens in criminal cases unless such speech had the tendency to affect public order.
He was also a member of a three-judge special bench on COVID-19 management in the country that prima facie observed that the Union Government’s policy of paid vaccinations by state governments and private hospitals for persons in the 18-44 years age group was arbitrary and irrational. This compelled the government to revise its policy, making vaccinations free for all.
Justice Rao also headed the bench which suo motu heard a case concerning orphaned children in the aftermath of the COVID-19 crisis. The bench led by him directed states and union territories to link children orphaned due to the COVID-19 pandemic and their family members to various welfare schemes. The bench of Justices Rao and B.R. Gavai noted that the National Commission for Protection of Child Rights has written 19,825 letters to various district authorities making various recommendations for linking a child and his or her family members to various schemes, but had received only 920 action taken reports.
A three-judge bench headed by Justice Rao asked the union government to constitute a National Tribunals Commission to act as an independent body to supervise the appointments and functioning of Tribunals, as well as to conduct disciplinary proceedings against their members, and to take care of the administrative and infrastructural needs of Tribunals. This bench struck down certain provisions of the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021. The bench said that the rule prescribing a minimum age of 50 years for appointment of lawyers to tribunals as judicial members was “arbitrary and discriminatory”. The bench also noted that a judicial member’s tenure in a tribunal should be five years and not four, as mentioned in the ordinance. However, the Parliament again brought in legislation to overrule the Supreme Court’s verdict.
Also read: What you need to know about Tribunal Reforms Bill, 2021
In National Highways Authority versus Pandarinathan Govindarajulu (2021), a Justice Rao-led bench observed that while economic development should not be allowed at the cost of ecology or by causing widespread environmental destruction, the necessity to preserve ecology and environment should not hamper economic and other development; both development and the environment must go hand in hand. The bench directed the Union Ministry of Environment, Forests and Climate Change to constitute an Expert Committee to examine whether segmentation is permissible for National Highway projects beyond a distance of 100 km and, if permissible, under what circumstances, in order to avoid environmental clearance.
In a significant ruling, a bench led by Justice Rao directed the Madhya Pradesh High Court to reinstate forthwith a female Additional District Judge (‘ADJ’) who had resigned from service in 2014 alleging sexual harassment by a High Court judge. The bench, which also comprised Justice B.R Gavai, held the resignation tendered by the woman ADJ not voluntary and thus set aside the acceptance of her resignation. The bench also directed that the judge would be entitled to her seniority. This was a first-of-its-kind decision.
In a decision concerning the Unlawful Activities (Prevention) (UAPA) Act, a bench led by Justice Rao held that the payment of extortion money did not amount to terror funding under the UAPA while granting bail to businessman Sudesh Kedia accused of providing financial support to the Tritiya Prastuti Committee (TPC), a splinter group of the Communist Party of India (Maoist).
A two-judge bench led by Justice Rao last year dismissed applications filed by certain banks seeking recall of the 2015 judgment in Reserve Bank of India vs. Jayantilal N. Mistry, which had held that the RBI did not have a fiduciary relationship with banks and financial institutions, and that it was obligated to disclose a list of wilful defaulters and annual inspection reports.
Also read: Reimagining a justice and legal system which actively eliminates hierarchies
Last year, a Justice Rao-led bench refused to quash the union government’s order extending the tenure of Sanjay Kumar Mishra as Director of the Enforcement Directorate (‘ED’) with retrospective effect, making it a three-year tenure against the initial two years, even though Mishra had attained superannuation in the interregnum, that is, before the expiry of two years. The bench, however, clarified that Mishra would not be given any further extension beyond November 17 when he would be completing three years of the tenure. However, the President promulgated two Ordinances, namely, the Central Vigilance Commission (Amendment) Ordinance, 2021 and the Delhi Special Police Establishment (Amendment) Ordinance, 2021 to extend the tenures of the Directors of the ED and the Central Bureau of Investigation, respectively, up to five years from the current two years’ tenure. This resulted in Mishra continuing as ED director, even though the Supreme Court had directed he would not be given any further extension.
In April, a bench comprising Justices Rao and Gavai had ordered the continuance of status quo in Jahangirpuri in Delhi, where the North Delhi Municipal Commission had partially carried out a demolition drive against alleged encroachers the previous day in spite of a Supreme Court order staying the same. The bench directed this while issuing notices in a batch of petitions against the demolition drives being carried out by executive authorities in different parts of the country.
Judgments on reservations
Justice Rao headed crucial matters concerning reservations in promotions. In Mukesh Kumar versus The State of Uttarakhand & Ors. (2020), a two-judge bench comprising Justices Rao and Hemant Gupta observed that there is no fundamental right which inheres in an individual to claim reservation in promotions.
Earlier this year, a three-judge division bench presided by Justice Rao in Jarnail Singh versus Lachhmi Narain, held that laying down of criteria for determining the inadequacy of representation of SC/ST would result in curtailing the discretion given to the State Governments. The bench left it to the states to adopt the yardstick for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation. Besides, the bench held that the state was obligated to collect quantifiable data regarding inadequacy of representation of SCs and STs before providing them the reservations in promotions. It was further held that the collection of information regarding inadequacy of representation of SCs and STs cannot be with reference to the entire service or ‘class’/‘group’ but it should be relatable to the grade/category of posts to which promotion is sought. Cadre, which should be the unit for the purpose of collection of quantifiable data in relation to the promotional post(s), would be meaningless if data pertaining to representation of SCs and STs is with reference to the entire service.
Also read: Constitutional History of Reservation in Promotions in India
A bench headed by Justice Rao upheld the Madras High Court’s judgment that had struck down the 10.5 per cent reservation provided to Vanniyars, a Most Backward Community in Tamil Nadu, in government jobs and admission to educational institutions, holding that there is no substantial basis for treating them differently.
As noted earlier, Justice Rao was part of a constitution bench that struck down a Maharashtra law providing reservations to the Maratha community in educational institutions and public services by declaring them as educationally and socially backward. The bench also declined to hold that the decision of the nine-judge Constitution bench of the Supreme Court in Indra Sawhney versus Union of India (1992) that held 50 per cent is the upper limit of reservation, required any reconsideration.
On freedom and liberty
Towards the end of his tenure, Justice Rao penned a significant ruling directing the release of A.G. Perarivalan, one of the convicts in former Prime Minister Rajiv Gandhi’s assassination case. He was critical of the Tamil Nadu Governor for not taking a decision on the petition filed by Perarivalan seeking remission of his sentence despite the recommendation of the state cabinet. A displeased Justice Rao invoked the Supreme Court’s inherent powers under Article 142 of the Constitution to treat the sentence awarded to Perarivalan as having been served and ordered his release. Significantly, he observed that petitions under Article 161 pertain to the liberty of individuals; therefore, any inexplicable delay – which is not on account of the prisoners – is inexcusable as it contributes to adverse physical conditions and mental distress faced by a prisoner. Besides, he reiterated that the Governor is but a shorthand expression for the state government. Justices Gavai and A.S. Bopanna joined Justice Rao in this ruling.
Justice Rao presided over the bench which directed the release of Samajwadi Party leader Azam Khan on interim bail, observing that the interest of justice demand his release, particularly when he had already been granted bail in 87 other criminal cases against him. Khan was being arrested in case after case even as he was granted bail in multiple cases against him.
Also read: Azam Khan’s bail: Supreme Court stays High Court’s disproportionate bail condition
In Jacob Puliyel vs. Union Of India & Ors, Justice Rao penned a judgment holding that bodily integrity is protected under Article 21 of the Constitution and hence, no individual can be forced to be vaccinated. He directed that the restrictions imposed by some states and union territories on unvaccinated people cannot be said to be proportionate in view of the fact that the material brought to the notice of the court that the risk of transmission from unvaccinated people is almost on par with the vaccinated. The bench, which also had Justice Gavai on it, thus held that till the infection rate is low, no restriction should be imposed on unvaccinated individuals in terms of access to public areas, services and resources.
Commutation of death penalty
In almost all cases involving the confirmation of a death sentence which came before the benches led by Justice Rao or a bench of which he was a part, the bench commuted the sentence to life imprisonment.
In 2019, in the case of Nand Kishore versus State of Madhya Pradesh, a three-judge bench comprising Justices S.A. Bobde, Rao and R. Subhash Reddy, commuted the death sentence into life imprisonment for a murder convict. The same bench, in Raju Jagdish Paswan versus State of Maharashtra (2019), commuted the death sentence into life imprisonment imposed on a person accused of brutal sexual assault on a nine-year girl.
“The brutal sexual assault by the Appellant on the hapless victim of nine years and the grotesque murder of the girl compels us to hold that the release of the Appellant on completion of 14 years of imprisonment would not be in the interest of the society. Considering the gravity of the offence and the manner in which it was done, we are of the opinion that the Appellant deserves to be incarcerated for a period of 30 years”, the bench held.
In 2020, in the case of Basavaraj alias Basya & Ors. versus State of Karnataka, a three-judge bench comprising then CJI Ranjan Gogoi and Justices Rao and Sanjiv Khanna commuted the death sentence into life imprisonment for one of the convicts and acquitted the remaining three persons of several penal offences, including Section 302 (punishment for murder) of the Indian Penal Code.
Also read: Why State’s apathy towards remission pleas of convicts should concern us all
In Irappa Siddappa Murgannavar versus State of Karnataka (2021), Justice Rao was part of a three-judge bench that confirmed the conviction of the appellant for offences including rape, murder and destruction of evidence, but set aside the award of death penalty, which was handed by lower courts on grounds including the minor age of the victim, and commuted it to life imprisonment for a period of 30 years.
In Mofil Khan & Anr versus State of Jharkhand (2021), a Justice Rao-led bench commuted the petitioners’ death sentence after observing that the possibility of reformation and rehabilitation of the convict is an important factor which has to be taken into account as a mitigating circumstance before sentencing them to death.
In Jaikam Khan versus The State of Uttar Pradesh (2021), a Supreme Court bench comprising Justices Rao, B.V. Nagarathna and Gavai acquitted three death row convicts after they had already spent eight years in prison. The bench remarked that their conviction and death sentence imposed was totally unsustainable in law, and heavily criticized the Assistant Sessions Judge, Bulandshahr, who had awarded the death penalty, as well as the Allahabad High Court, which had confirmed the award, for incorrect application of law as well as disregard for the basic principles of criminal law.
Earlier this year, in Bhagwani versus The State of Madhya Pradesh (2022), a Justice Rao-led bench, while commuting the death sentence imposed on a rape-cum-murder convict, held that it should not be forgotten that a criminal, howsoever ruthless they might be, are nevertheless a human being and are entitled to a life of dignity notwithstanding their crime. Authoring the judgment, Justice Rao wrote that it is for the prosecution and the courts to determine whether such a person, notwithstanding their crime, can be reformed and rehabilitated.