Justice L. Nageswara Rao's Six Years At The Bench - An Extensive Tenure Marked By Notable Interventions

Before assuming office on 13th May, 2016, he was a Senior Advocate of the Andhra Pradesh High Court. He was designated as a Senior in 2000, prior to which he practiced in the Andhra Pradesh District Courts, Guntur since his enrolment in 1982 and thereafter before the Andhra Pradesh High Court. He also served as the Additional Solicitor General of India from August, 2003 to May, 2004 and again from August, 2013 to December, 2014.

As a Senior Advocate, he defended former CM of Tamil Nadu, Jayalalitha in the famous Disproportionate Assets case, before the Karnataka High Court, wherein she was acquitted of all charges. On behalf of the State of Tamil Nadu, he had argued that NEET cannot be imposed as the Madras High Court had upheld the State Law reserving 85% seats and admission based on the marks obtained in class XII. As a judge, when the challenge to the ordinance on the NEET was listed before a Bench wherein he was a member, Justice Rao had recused, citing his appearance as a Counsel for the State of Tamil Nadu in the matter.

In 2014, when the Supreme Court constituted the Mudgal Committee headed by Justice Mukul Mudgal, retired Chief Justice of Punjab & Haryana High Court, for conducting an independent inquiry into allegations of corruption, betting and spot fixing into the 6th edition of the Indian Premier League, he was appointed as a member. In 2020, when the matter pertaining to the extension of tenure of the President and Secretary of BCCI, was listed before his Bench, an application was filed seeking Justice Rao's recusal for his association with the Mudgal Committee as a lawyer.

He was the seventh person to be elevated directly from the Bar to the Apex Court in exercise of Article 124 (3)(b) of the Constitution of India, 1950. After Justice Rohinton Nariman retired in August, 2021, Justice Rao joined the collegium as its Fifth judge.

In his extensive career, quite evidently, he has worn many hats. Recently, we witnessed the cricketing prowess of this former Ranji-Trophy player from Andhra Pradesh, when under his captaincy the Supreme Court Judges' Cricket Team, CJI-IX triumphed over that of the Supreme Court Bar Association, SCBA IX in a friendly T20 cricket match. Interestingly, his enthusiasm for sports is not limited to the field, but extends to his courtroom. In a plea to declare physical literacy a fundamental right under Article 21A, a Bench led by him, has shown great impetus to 'kickstart the campaign'.

Justice Rao has also been seen donning the role of a mentor. On several occasions, he had encouraged young advocates to grab the opportunity to argue instead of seeking adjournment on behalf of their seniors. In this regard, juniors have been asked to argue with an assurance that adverse orders would not be passed against their clients. Frequently, he had been sympathetic towards juniors who had inadvertently deviated from the conventions of the Apex Court. Once, when a junior sought passover appraising the Bench presided by him that his senior was on his legs before the National Green Tribunal (NGT), he had politely remarked -

"You have said this here, it is fine. But do not say this before some other Bench of this Court, that you seek passover because your senior is before NGT."

He has often advised lawyers to not bypass fora and emphasised on approaching the Supreme Court only after exhausting all other remedies available to them. Reckoning that Public Interest Litigations are important to raise voices of the people in a democracy, in recent hearings, he has cautioned lawyers from entering into misadventures in the guise of PIL.

With a wide-portfolio, his tenure is marked by several notable interventions. With the MC Mehta and T.N. Godavarman batch petitions before him, Justice Rao had the opportunity to deal with varied environmental concerns.

 His intervention at the behest of the marginalised community can be seen in the recent order passed by his Bench critical of the Telangana Government cancelling 19 Lakh Ration Cards even before conducting field verification; or in issuing notice in the plea by gig workers seeking declaration that they are workmen in the classical sense of the term. Another instance, in recent times, is the extension of status quo order on Jahangirpuri Demolitions.

It was a Bench led by Justice Rao which had refused to interfere with the extension of the tenure of the Director of Enforcement Direction, Sanjay Kumar Mishra. In another significant judgment, heard by his Bench and authored by Justice B.R. Gavai, direction was issued to the Madhya Pradesh High Court to reinstate a women Additional District and Sessions Judge who was constrained to resign after raising sexual harassment allegations against a then sitting judge of the MP High Court.

In December 2021, a bench led by him acquitted three persons who were sentenced to death, after observing that the trial court and the High Court made several glaring mistakes in appreciation of

In his last working week, the Bench led by Justice Rao had exercised power under Article 142 of the Constitution to release A.G. Perarivalan, convict in the Rajiv Gandhi assassination case, whose early release plea was kept in abeyance for more than two years by the Tamil Nadu Governer and then referred to the President for his consideration. Article 142 power was also exercised to grant interim bail to SP leader Azam Khan asking him to move regular bail before the concerned court. In another high profile matter listed in his last working week, INX Media Co-founder Indrani Mukerjea was granted bail in the case alleging murder of her daughter, Sheena Bora.

Some of his Notable Interventions are as under :

Constitution Bench Judgments

Maratha Reservation

Justice Rao was a part of the 5 Judge Bench that decided against the Maratha Quota in excess of the 50% ceiling limit in Dr. Jaishree Laxmanrao Patil v. Chief Minister CA No. 3123 of 2020. The Bench had struck down the Maharashtra Socially and Economically Backward Classes Act, 2018 which was promulgated to provide 16% reservation of seats in educational institutions and in posts for appointments in public services to the Maratha Community. After the Bombay High Court had upheld the validity of the Act, but modified the percentage of reservation, it was first assailed before a 3-Judge Bench led by Justice Rao. As it involved the interpretation of the 102nd Constitution Amendment, which introduced the National Commission for Backward Classes, among other constitutional principles, the matter was referred to the Constitution Bench. Considering that the Marathas are a dominant and forward class and not socially and economically backward; they are adequately represented; there is no need to revisit the 50% ceiling set out in Indra Sawhey's case; 102nd Constitution Amendment did not violate the basic structure, the Bench had held the Maharashtra SEBC Act to be unconstitutional.

Re-Promulgation of Ordinances

In Krishna Kumar Singh v. State of Bihar, Justice Rao was a part of the 7 judge Bench, which held that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes. The majority opinion, of which Justice Rao was a part, was that the requirement of placing ordinance before the legislature is mandatory and a constitutional obligation of the executive, otherwise the ordinance would cease to operate six weeks after the legislature reassembled and even before that if a resolution disapproving the ordinance is passed. Moreover, it was held that the satisfaction of the President under Article 123 and that of the Governor under Article 213 is not immune from judicial review, especially after the 44th Amendment to the Constitution.

Electoral Appeal

In Abhiram Singh v. Commochen interpreting Section 123(3) of the Representation of People's Act, 1951, a 7-judge Bench, in a bid to uphold the integrity of the election process, declared that an appeal made on grounds of religion, race, caste, community or language would constitute a corrupt practice. The majority judgment, which included the opinion of Justice Rao, giving wider import to Section 123(3), held that not only appeal to the ascriptive identities of the candidates or their agents or their opponents was impermissible; the appeal to the ascriptive identities of the voters is also to be considered as corrupt practice.

Sabarimala

Justice Rao was one of the nine-judges of the Constitution Bench constituted to decide issues pertaining to essential religious practices. The Bench had preliminarily heard a disputation of lawyers assailing the reference. However, it held that reference in review is permissible and went ahead to frame 7 issues, primarily on the inter-play between religious rights and the other fundamental rights, for consideration. Though the reference was made in the Sabarimala matter, the issues for consideration were general questions related to essential religious practices. [Kantaru Rajeevaru v. Indian Young Lawyers Association Thr. Its General Secretary And Ors.]

Crucial Judgments on Reservation

Apart from the Maratha reservation matter, Justice Rao had passed significant judgments in matters pertaining to reservation in promotion for SC/STs; reservation in promotion for Person With Disability; reservation in educational institutions and government jobs for the Vanniyar community in Tamil Nadu and also domicile reservation in private sector jobs in Haryana.

Reservation in Promotion for Scheduled Caste and Scheduled Tribe

A 3 judge Bench in Jarnail Singh v. Lachhmi Narain Gupta held that prior to providing reservation for Scheduled Castes and Scheduled Tribes community in promotions to a cadre, the State Governments are obligated to collect quantifiable data to ascertain the inadequacy of representation. The Bench led by Justice Rao also declared that its judgment in M. Nagaraj And Ors. v. Union of India And Ors. ought to have a prospective effect.

Reservation in Promotion for Person With Disability

A Bench led by Justice Rao directed the Union Government to issue instructions within four months from the date of order for providing promotion to persons with disabilities in terms of Section 34 of the Right of Persons with Disabilities Act, 2016. After a 3-Judge Bench led by Justice Rohinton Nariman clarified that the principle of 'no reservation in promotion' as held in Indra Sawhney's judgment cannot be extended to the PWDs, the Union Government had sought clarification citing ambiguity in the judgments referred to by the 3 judge Bench to uphold reservation in promotion. Unable to spot any such ambiguity, Justice Rao had asked the Centre to implement the judgment. [Siddaraju v. State of Karnataka (Misc Application)]

Vaniyaar Reservation

A Bench headed by Justice Rao had held the 2021 Tamil Nadu Law providing 10.5% reservation in educational institutions and government jobs to the Vanniyar community out of the 20% reservation available to the Most Backward Classes to be unconstitutional. Internal Reservation of 10.5% only for the Vanniyars out of 116 castes, solely based on population percentage, it found, was not justifiable. [Pattali Makkal Katchi v. A. Mayilerumperumal And Ors.]

Domicile Reservation

In State of Haryana v. Faridabad Industries Association And Anr., the Bench headed by Justice Rao set aside the interim order of the Punjab and Haryana High Court, wherein the operation of the Haryana Law granting 75% reservation to locals in private sector jobs having a monthly salary less than Rs. 30,000 was stayed. Considering the submission of the Counsel for Faridabad Industrial Association regarding the plight of more than 48,000 companies registered in the State who were barred from employing people from other States, the Bench directed the State Government to refrain from taking coercive action against them till the High Court decides the matter.

COVID-19 Pandemic Related Interventions

Vaccine Mandate, Non-Disclosure of Segregate Clinical Trial Data, Reporting of AEFIs, Vaccinating Children

Justice Rao led Bench in Jacob Puliyel v. Union of India held that the right to bodily integrity of a person protected under Article 21 of the Constitution includes the right to refuse vaccination. Stating that no individual can be forced to get vaccinated, it held that vaccine mandates imposed by various State Governments and other authorities in the context of COVID-19 pandemic are not proportionate. It upheld India's vaccination policy. Approving the Union Government's policy decision to vaccinate children, the Bench directed it to ensure that key findings and results of relevant phases of clinical trials of approved vaccines are placed in the public domain. It also directed the Union Government to allow individuals and doctors to report the Adverse Events Following Immunization (AEFIs) on a virtual platform and make the reports of the same publicly accessible, without compromising the privacy of the persons reporting.

Vaccine Policy

In Re Distribution of Essential Supplies and Services During Pandemic, the Court had taken suo moto cognisance of issues pertaining to drug pricing, availability and transportation of oxygen and essential drugs, vaccine policy etc. The Bench comprising Justice D.Y. Chandrachud, Justice Rao and Justice S. Ravindra Bhat had prima facie found the policy of paid vaccination for the age group of 18-44 years to be arbitrary and irrational. It asked why the budgetary allocation of Rs. 35,000 crores to procure vaccines, cannot be used to make vaccines free. In light of the same, the Centre was directed to review its vaccination policy. Subsequently, on 07.06.2021, the Prime minister announced significant changes in the vaccination policy, inter alia, extending the benefit of free vaccine scheme to the age group of 18-44 years.

Children who lost both or either parent to COVID-19

During the first wave of the pandemic, a Bench led by Justice Rao took suo moto cognisance of the conditions of children protection homes in the interest of the children in need of care and protection and those in conflict with law, who are kept at these homes. His bench had been handling two suo motu matters "In Re Children in Street Situation" and "In Re Children In Need of Care and Protection Due To Loss Of Parents During Covid 19". Several orders were passed to ensure that the illegal adoption of children orphaned during COVID are stopped, the education of such children are continued and that their welfare is taken care of. In the suo motu case relating to children in street situation, the bench has been passing directions to the NCPCR and the State Governments to collect the data relating to such children to facilitate their rehabilitation. 

Sex Workers

In a matter pertaining to the right of the sex workers to live with dignity, an application was filed seeking food and financial aid in view of the raging pandemic. Previously, the Bench led by Justice Rao had directed States to distribute dry ration to the sex workers without insisting on proof of identity. The application alleged that the authorities were insisting on proof of identity.

While directing Governments to issue ration cards, voter IDs to sex workers, the Bench noted -

"Right to dignity is a Fundamental Right that is guaranteed to every citizen of this country irrespective of his/her vocation. There is a bounden duty cast on the government to provide basic amenities to the citizens of this country."

The Bench has also urged authorities to issue Aadhaar Cards to the sex workers without insisting on formal proof of residence. [Budhadev Karmaskar v. State of WB And Ors.]

Protecting Prisoners from COVID-19 infection

In the wake of the COVID-19 pandemic, a 3-judge Bench, which Justice Rao was a part of, directed the States and Union Territories to constitute a High Powered Committee to determine which class of prisoners can be released on parole. This order was passed in view of the Court's effort to curb spread of the virus in the otherwise overcrowded prisons. It had also directed under-trials not to be produced physically in Court; virtual presence through Video Conferencing would be sufficient. As the second wave of COVID-19 pandemic had wreaked havoc across India, a Bench comprising the CJI, NV Ramana, Justices Rao and Surya Kant again passed an order to decongest prisons. [In Re : Contagion of COVID 19 Virus in Prisons]

Non-listing of Bail Applications during lockdown

During the first phase of the pandemic, the Rajasthan High Court had, inter alia, directed its Registry to not list applications seeking anticipatory bail in offences where maximum sentence is upto three years, before the vacation Bench. A Bench comprising Justice Rao and Justices Aniruddha Bose came down heavily on the High Court for passing orders which have the potential to violate constitutional rights of the accused. [High Court of Judicature for Rajasthan versus The State of Rajasthan and Another]

Limitation

He was also a part of the Bench that had passed orders pertaining to extension and recall of extension of limitation period in sync with rise and fall of the pandemic waves. In the wake of the outbreak, on 23.03.2020 limitation period was extended w.e.f. 15.03.2020 till further orders. It was recalled w.e.f 15.03.2021. In view of the second wave, the limitation extension was revived on 27.04.2021 and again recalled on 23.09.2021. The last extension was restored on 10.01.2022 which came to an end on 28.02.2022. [In Re Cognizance For Extension of Limitation]

Institutional Reforms

Service Years Criteria Reduced For Promotion As District Judge

Considering the peculiar circumstances prevalent in Delhi that the nature of work performed by the Civil Judge (Junior Division) and Civil Judge (Senior Division) is the same, the Bench led by Justice Rao thought it fit to modify the eligibility criteria for Civil Judges in Delhi Judicial Service to seek promotion to the cadre of District Judges through Limited Departmental Competitive Examination (LDCE). Civil Judges having 7 years qualifying service [(5 years as Civil Judge (Junior Division) and 2 years as Civil Judge (Senior Division)] or 10 years qualifying service as Civil Judge (Junior Division) will be eligible for promotion as District Judges strictly on the basis of merit through LDCE. [ All India Judges Association And Ors v. Union of India And Ors.]

Age-Limit for Appointment as Tribunal Members

In a notable judgment in Madras Bar Association v. Union of India And Anr., a Bench comprising Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat directed the Centre to amend the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 to make advocates with 10 years practice eligible for appointment as judicial members in Tribunals. Later in 2021, Justice Rao was one of the two judges who formed the majority opinion in striking down the 50 years age stipulation in the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance 2021 for appointment as members in various tribunals as "arbitrary and discriminatory". Apart from the age criteria, it also struck down a few other provisions of the Ordinance as unconstitutional.

Revamping the Criminal Justice System

Inadequacies and Deficiencies in Criminal Trials

The Supreme Court had taken suo moto cognisance of delay in criminal trials. Considering that the lack of uniformity in the rules adopted by States to conduct trials has hindered the evidence appreciation mechanism, it had suggested the High Courts to adopt the Draft Rules for Criminal Trials prepared by the Amici Curiae. Consequential amendments were also directed to be carried out to the police and other manuals. [In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials]

Expeditious Trial of Cases Under Section 138 NI Act

In order to streamline the procedure of arresting the judicial docket, in regard to complaints and trials for offences under the Negotiable Instruments Act, the Court appointed Amici Curiae had suggested creation of special courts under the NI Act, with retired officers and retired court staff. A pilot study in 5 judicial districts with highest pendency in the 5 States with highest pendency (Maharashtra, Rajasthan, Gujarat, Delhi and Uttar Pradesh) was recommended in this regard. Recently, a Bench led by Justice Rao passed an order incorporating the suggestions of the Amici and provided detailed guidelines to conduct the pilot project. [In Re: Expeditious Trial of Cases under Section138 of N.I. Act 1881]

In a suo moto writ petition, a Bench comprising CJI, NV Ramana, Justice Surya Kant and Justice Rao, in view of the plight of the jail inmates who are not readily released after securing bail, approved the use of of an electronic system named FASTER (Fast and Secured Transmission of Electronic Records) for transmission of e-authenticated copies of orders. [In Re Delay in Release of Convicts After Grant of Bail]

Pendency of Criminal Appeals in High Courts

Recently, the Bench led by Justice Rao, sought suggestions from the Union Government to tackle pendency of criminal appeals in High Courts. The Bench was perturbed when apprised that in the Madhya Pradesh High Court there are appeals which are pending for 20-30 years and the oldest appeals pending before the Allahabad High Court are from the year 1980. [Khursheed Ahmad v. State of Uttar Pradesh]