So, Justice Ranjan Gogoi will become the next chief justice of India (CJI) after Dipak Misra demits office on October 2, if law minister Ravi Shankar Prasad is to be believed, setting at rest speculation that he is persona non grata for the Narendra Modi government as CJI after he jointly addressed the media with his seniormost colleagues in January this year.
But Gogoi barely spoke during the press conference. It was the “rebel” Justice Jasti Chelameswar who did all the talking while Gogoi only confirmed at the end that it was the assigning of a petition demanding an independent probe into the allegedly suspicious death of Judge Loya which was the last straw for the four rebel judges who shattered convention.
But after he returned to his home state, Justice Gogoi did an about turn and said everything was okay within the judiciary. Nevertheless, by jointly addressing the media with the three other senior judges who were never in line to become the next CJI, he was jeopardising his chances of becoming the next CJI.
The press conference was unprecedented because the CJI is the head of the judicial family throughout India. He is the only one having the authority to redress grievances within the judiciary. So, going to the media had the implication that CJI Dipak Misra endangered democracy in India, which is what the four judges alleged. The four collegium members openly declared they were doing this because no wise men should say in future that the four collegium members “had sold their souls”.
Later this year, when the BJP government opposed the name of Justice K M Joseph for elevation to the Supreme Court, a tepid CJI Dipak Misra declared “there was nothing wrong in the government opposing elevation of a name recommended by the collegium”. This proved the CJI would toe the government line just as former CJI T S Thakur wept in public before Narendra Modi because his government was not clearing the names of those lawyers selected as judges. Judges have contempt powers and weeping in public is a sign of weakness before the government.
While responding to a question on whether the BJP government would adhere to protocol to appoint Gogoi as the next CJI after Dipak Misra demits office on October 2, law minister Ravi Shankar Prasad told the media on June 18 that the sitting CJI always names his seniormost judge of the apex court as his successor. “When the name comes to us, we will discuss it… But no one has the right to question our intention,” he said.
This statement that “no one had the right to question our intention” appears sinister because the government comprises a single political party which professes an ideology espoused by the RSS of which Prime Minister Narendra Modi is a swayamsevak. Returning the name of Justice K M Joseph after it was reiterated by the Supreme Court collegium fuelled speculation that Joseph was persona non grata because he had struck down President’s rule imposed by Narendra Modi in Uttarakhand. Former Punjab supercop Julio Ribeiro openly declared that Joseph belonged to a minority community which may have been another reason for the BJP to oppose his elevation.
But opposing Justice Joseph’s elevation to the apex court is very different from superseding Justice Gogoi which will touch off a global outcry that democracy is really in danger because the judiciary has been suppressed by the executive as indirectly stated by the seniormost judge Jasti Chelameswar who retired on Friday.
Gogoi’s tenure of slightly over one year as CJI is too short to make drastic changes in the judiciary. His collegium will comprise Justices Arjan Kumar Sikri, Sharad Bobde, N V Ramanna and Arun Mishra who will never do what the four rebel judges did because Bobde and Ramanna are slated to become CJIs in 2019 and 2021. Chelameswar had accused Misra who was entrusted with the Judge Loya case.
Gogoi will be succeeded as CJI on November 18, 2019 by Justice Sharad Bobde from Nagpur who is the son of former advocate general of the Bombay high court, Arvind Bobde who was appointed by the Congress government. Bobde is tight-lipped and will never divulge anything to the media.
In 1977, Indira Gandhi superseded Justice H S Khanna by Justice M H Beg following his historic dissent in the ADM Jabalpur case, where he stood up for the fundamental right to life and liberty during the Emergency. This was when her law minister (in)famously said all apex court judges must have the same ideology as the executive.
In 1973, following the Kesavananda Bharati judgment, which toppled Ms Gandhi’s Constitutional amendments to give Parliament supremacy over the judiciary and introduced the basic structure doctrine, three senior-most judges of the Supreme Court, J M Shelat, A N Grover and K S Hegde, resigned after the government superseded them to appoint Justice A N Ray as CJI to succeed then CJI S M Sikri. Ray was supposed to be so close to Indira Gandhi that he reportedly phoned her to elicit her views on major issues before the court.
According to the memorandum of procedure, a document which guides the appointment and transfer of judges of the apex court and the 24 high courts, other senior judges should be consulted for appointment of the next CJI only if there is grave doubt about the fitness of the seniormost judge to become the next CJI. But there is no doubt that Ranjan Gogoi is fit enough to occupy the CJI’s office.
But whether he will resist the Narendra Modi government’s insistence on having the last say on who will be elevated as Supreme Court judges remains to be seen.
Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.