Great expectations from Justice Ranjan Gogoi’s tenure as Chief Justice

Justice Ranjan Gogoi will assume office as the 46th Chief Justice of India on October 3, 2018, a day after the current Chief Justice Dipak Misra retires. The prelude to any new Chief Justice being sworn in, is often a period of great excitement in the court corridors, with the lawyers feverishly speculating about the tenure of the new CJI, how he/she (till now only ‘he’) would run the Court administration, looking into the previous judgments to discern his/her views on certain issues, and hoping that some long-pending judicial reforms would be undertaken.

But these are not normal times. The appointment of Justice Ranjan Gogoi was itself under doubt, after his participation in the unprecedented press conference with three other senior-most judges at the time, including Justice J Chelameswar (now retired), Justice Madan Lokur and Justice Kurien Joseph on January 12, 2018. The press conference brought to the fore the huge differences that existed at the time between CJI Dipak Mishra and the then four senior-most judges, on allocation of cases to different benches, including the controversial case of seeking independent investigation in special CBI Judge BH Loya’s death. The tensions that spilled into public perhaps never got resolved, as the four-senior most judges did not become part of any Constitution Bench adjudicating highly significant matters like Aadhaar, Section 377, Sabarimala temple entry, adultery, etc.

With the institutional credibility of the Supreme Court at an all time low, Justice Gogoi has his task cut out. Firstly, the divisions that cropped up amongst the judges of the Supreme Court ought to be sorted out, in order to restore the confidence of the public in the administration of justice. The issue of allocation of cases has to be addressed fairly, so that charges of arbitrariness are no longer made when the Chief Justice exercises his power as ‘master of roster’.

Secondly, the memorandum of procedure (MoP) for the appointment of judges needs to be finalised, which has become an extremely contentious issue between the judiciary and the executive, with the current government trying every means to undermine the independence of judiciary by interfering with the process of appointment of judges. In fact, the tussle over the MoP came to the fore when the four judges expressed displeasure in the January press conference over the way a two-judge bench passed an order on October 27, 2017 stating that there should be no further delay in finalising the MoP in ‘larger public interest’, when the issue ought to have been discussed in the full court.

This would have been in compliance with the decision of a Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association and Anr vs Union of India [(2016) 5 SCC1], which struck down the National Judicial Commission Act (‘NJAC’) for violating the basic structure of the Constitution, ie, the principle of independence of judiciary, and restored the primacy of the Supreme Court Collegium in judicial appointments. Since December, 2015, the judiciary and the executive have been at loggerheads over the contours of the MoP, wherein the Government is trying to include criteria which would effectively dilute the Collegium’s power to appoint the judges. The most brazen example of the political interference in judicial appointments occurred recently in the case of Justice KM Joseph, who was recommended for elevation from the Uttarakhand High Court in January, 2018, along with Indu Malhotra. While the Modi Government accepted Ms Malhotra’s elevation in April, 2018, it held back the recommendation for Joseph’s elevation.

After the Collegium reiterated their recommendation for Justice Joseph, the Government reluctantly accepted it only in August, 2018, which tampered with Justice Joseph’s seniority, who then became the junior-most judge in the Court. All this because Justice Joseph had decided against the Central Government when Presidential rule in Uttarakhand was challenged by the Congress party. This shows the huge danger of political interference in judicial appointments, wherein the independence of judiciary is seriously put in peril. It is thus hoped that Justice Gogoi would finalise the MoP, keeping in mind the constitutional principles of protecting the independence and integrity of the judiciary.

Further, Justice Gogoi would remain as Chief Justice till November 17, 2019, which would cover the period of the next Lok Sabha elections to be held in April/May, 2019. If the past record of the Bharatiya Janata Party, which leads the ND government, is anything to go by, they are bad ‘losers’, ie, in case of a hung Parliament, the BJP would try all means to remain in power. This was most evident in the recent Karnataka elections in May, 2018, when the Congress party had to approach the Supreme Court to get a floor test done quickly, since the Governor had, despite the Congress-JD(S) being the majority coalition, called the BJP to form government and gave them 15 days to prove their majority, thereby raising serious concerns of rampant horse-trading and corruption. In other cases like Arunachal Pradesh or Uttarakhand, the BJP got members from Congress to defect and formed the government through completely undemocratic and unscrupulous means, making a mockery of the democratic process. Thus, the Supreme Court under the aegis of Justice Gogoi has to remain vigilant to ensure that the elections are conducted in a free and fair manner, and the mandate of the people is respected. It is a great pity that the free and fair election system, which till the last election, was taken for granted, is now no longer so, and there is no greater threat to democracy than that.

There are great expectations attached with Justice Gogoi’s tenure as Chief Justice, and most importantly, they pertain to restoring the institutional credibility of the highest constitutional court of the country. This is one of the most critical times for the Supreme Court as well for the democratic institutions, and all eyes are on the former to save the latter.