By Amritananda Chakravorty
President of India has appointed Justice Ranjan Gogoi as the 46th Chief Justice of India, and he would assume office on 3rd October, 2018, a day after the current Chief Justice Dipak Mishra 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 CJ, 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, considering he participated in the unprecedented press conference with three other senior most judges, including Justice J. Chelameswar (now retired), Justice Madan Lokur, and Justice Kurien Joseph on 12th January, 2018. This brought to the fore the huge differences that existed between the Chief Justice Dipak Mishra and the four senior most judges on allocation of cases to different benches, including the controversial case of seeking independent investigation in Judge B.M. Loya’s death. The tensions that spilled into public never got resolved, as evident from the fact that the four senior most judges did not become part of any Constitutional Bench adjudicating hugely significant matters like Aadhar, Section 377, Sabarimala temple entry, adultery, etc.
The institutional credibility of the Supreme Court is at an all time low. Justice Gogoi has a tough task cut out for him. Firstly,the divisions that cropped amongst the judges of the Supreme Court ought to be sorted, 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, and the power of Chief Justice as the ‘master of roster’ is exercised within constitutional bounds.
Secondly, the memorandum of procedure 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 27th October, 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, i.e., the principle of independence of judiciary, and restored the primacy of the Supreme Court Collegium in the 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 happened recently in the case of Justice K.M. Joseph, who was recommended for elevation from the Uttarakhan High Court in January, 2018, along with Indu Malhotra, and while the Government refused to accept the recommendation of his elevation, they accepted Ms. Malhotra’s elevation in April, 2018.
After the Collegium reiterated their recommendation for Justice Joseph, the Government reluctantly accepted it 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 the 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.
Thirdly, the way Chief Justice Dipak Mishra handled the case pertaining to Judge B.M. Loya’s death left much to be desired, when the Bench cast aspersions on the motives of the Petitioners and their lawyers, seeking an independent investigation into the judge’s suspicious death, while hearing a sensitive political case. It is important to remember that Justice Gogoi, when asked by the media whether the trigger for the judges’ press conference in January, 2018 press conference was the allocation of Judge Loya’s case to a bench alleged to be close to the government, replied in the affirmative. Though the review petitions have been dismissed in this case, the option of curative petition is still open, and if filed during Justice Gogoi tenure, one hopes that the petitions would get a fair and impartial hearing, guided by basic principles of criminal law jurisprudence, and not hyperbole that ‘judicial officers cannot be questioned’.
Fourthly, Justice Gogoi would remain as Chief Justice till 17th November, 2019, which would cover the period of the general elections to be held in April/May, 2019. If the past record of this government is anything to go by, they are bad ‘losers’, i.e., in case of a hung parliament, the Central Government would try all means, especially unconstitutional 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 given them 15 days to prove their majority, thereby raising serious concerns of rampant horsetrading and corruption. In other cases like Arunachal Pradesh or Uttarakhand, the BJP got members from Congress defected, and formed the government through completely undemocratic and unscruplous means, and making a mockery of the democratic process. Thus, the Supreme Court under the aegis of Justice Gogoi has to remain very 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 expections attached with Justice Gogoi’s Chief Justice tenure, 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. (IPA Service)
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