The Chief Justice Of A Court In Turmoil
So impossibly high are the expectations of Justice Gogoi that it is inevitable that he will fall short, says Alok Prasanna Kumar.
When he was appointed as a judge of the Supreme Court of India on April 23, 2012, it was foreordained that Justice Ranjan Gogoi would be in line to takeover as Chief Justice of India in October, 2018 by dint of the seniority convention. No one, least of Justice Gogoi himself, could have possibly imagined that he would be taking over as the Chief Justice of India in the circumstances that the court finds itself in.
In his expected tenure of a year and two months, Justice Gogoi has the unenviable task of trying to restore an institution whose credibility and reputation lie in tatters given the events of the last two years. Justice Gogoi will be the first CJI from the Gauhati High Court and indeed, from India’s north-east. His path to the Supreme Court involved a detour as the Chief Justice of the Punjab and Haryana High Court, before he was elevated as a judge of the Supreme Court of India.
While dark rumours persisted about a possible supersession in light of the press conference in January this year, the Government eventually followed convention and procedure in confirming his appointment to the post of CJI. Justice Gogoi’s biography is well known.
The term ‘no-nonsense judge’ is used somewhat liberally these days, but with Justice Gogoi it can be used literally.
Sitting in his courtroom one gets the sense of a judge in absolute control of the proceedings before him. He speaks in measured tones and rarely allows counsel to get carried away. He does not tolerate any senior counsel trying to throw their weight around in his courtroom and is more than an intellectual match to most of them. With his jurisprudence as well, he is measured and careful in his judgments.
If he has not so far left us a track record in more important cases, it can only be attributed to the machinations of CJI Misra who has refused to include senior judges on constitutional benches hearing important matters.
Given his superbly well reasoned judgment in Adi Saiva Sivachariyargal Nala Sangam v State of Tamil Nadu (concerning the appointment of non-Brahmin archakas in Tamil Nadu) one would have loved to read his take on religion and constitutional rights in the Sabarimala case.
But, he’s not perfect. Two controversial cases come to mind. His response to Markandey Katju’s criticism of his judgment in the Soumya murder case was mean-spirited and ill-advised. It ill behooves a Supreme Court judge to take criticism—even from another judge— in such a personal manner, even if it was intended to be taken personally. It sounds unfair, but there are certain obligations that come with an office of such importance and dignity, and Justice Gogoi didn’t respond to it well enough.
Even more worrisome is his ongoing supervision of the preparation of the National Register of Citizens in Assam.
Since 2013, he has been on the bench overseeing this and as I’ve written elsewhere, his concern for speed and efficiency in preparing the NRC has come at the cost of millions of people at risk of losing their rights and livelihoods and raising ethnic tensions across the region. There’s also the uncomfortable fact that he is from Assam himself and leaves himself open to the accusation that his approach to the case may be less than entirely impartial. One can only hope that he’s cognisant of the risks of the process.
Justice Gogoi Takes Over As CJI Of A Court In Turmoil
Not just the court, but the judiciary as a whole. Internally and externally, the judiciary, and especially the Supreme Court, faces numerous challenges, the most pressing one being the crisis in credibility. The last two Chief Justices of India have not exactly covered themselves in glory. Controversies have erupted over appointments, corruption, misconduct, impeachment, internal procedure and government interference. Their handling of it has been marked by the consistency with which they have failed to defend the institution of the judiciary.
Much of this may be a battle of perception and norms, but it is having a real impact on the ground. Fewer people are filing civil cases across the country as the court’s own data shows.
The judiciary continues to have a serious diversity problem at the higher levels, reflecting in some of the problematic judgments we have seen concerning Dalits and women.
Will Justice Gogoi set about addressing them? It is difficult to predict exactly what he will do but we know he’s thinking about it.
The press conference in January gained immense credibility not only because of his presence—given that he was in line to be Chief Justice next—but also because he uttered the most significant words of the press conference – his ‘yes’ to a question indicating that it was the Judge Loya case which prompted the press conference. It is also no coincidence perhaps that he was on the collegium when they started to make resolutions public. This happened immediately after the controversy over the transfer Justice Jayant Patel of the Karnataka High Court and one can’t help but think the two are linked.
One further reason to believe that it was Justice Gogoi who was behind this idea of making resolutions public is his judgment in Indira Jaisingh vs Union of India.
Here, his judgment set the stage for a total overhaul of the process by which senior advocates are designated by the High Courts and the Supreme Court in India. Also, evidence of his thinking comes in the form of the ‘concurring’ judgment that was delivered by Justice Chelameswar and him in the Justice Karnan case.
If this judgment is any indication of his thinking, one would draw the conclusion that this is someone who’s fully cognizant of the deeper institutional issues facing the judiciary that can’t be handled by putting Justice Karnan in jail.
Justice Gogoi is perhaps fully aware of the burden of the task that lies before him. He can’t have missed a statement by Fali Nariman advising people to wait for Justice Gogoi to take over to really fix things with the Supreme Court. While CJIs are inevitably snowed under a mountain of cases and administrative work, Justice Gogoi will have to manage that and fix the processes that have broken down. He will have to take his fellow judges into confidence and undertake the kind of massive systemic reforms from within to allow the judiciary to withstand the increasing pressure it faces. He will have to put transparency above all if he needs to restore the court.
He has only a term of a little more than a year to do all that he must. Perhaps the best he can do is to start the process of reform and trust his successors to take it forward. Even if he simply rebuilds the trust between judges of the Supreme Court to get them functioning as one unit, he will have made an immeasurable contribution to the institution. For the sake of India’s constitutional government, one hopes he will succeed.
Alok Prasanna Kumar is an advocate based in Bengaluru, an Executive Committee Member of the Campaign for Judicial Accountability and Reforms. CJAR filed a petition seeking an SIT probe into the medical council bribery case.
The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.