The Supreme Court representing the highest judiciary of the country played a glorious role last month in expanding the frontiers of democratic and human rights and also facilitating the process of taking further forward looking measures for ensuring justice accessible to the poor and the marginalized sections of the Indian society. Justice Ranjan Gogoi who took over as the new CJI on October 3 has aroused great expectations amongst the civil society and the legal community about imparting a new edge to the liberal spirit of the Indian constitution and making the process of justice more peoples friendly. The base has already been built by the outgoing CJI Dipak Misra in his judgments given in the last two months and his observations along with the dissent notes given by Justice D Y Chandrachud opens up big possibilities for furthering the cause of liberty and freedom of expression in the Indian society by effectively tapping the potential enshrined in the spirit of Constitution.
CJI Gogoi has already been quoted as saying that the country should not mind having noisy judges like noisy journalists. The CJI has been active for one year in rendering free legal service to the poor and needy through the National Legal Services Authority (NALSA) and now, with his new position, he is expected to catalyse the process so that the legal system can not be taken advantage of by the rich through their money power. Presently, there are 2.78 crore pending cases in lower courts, 32.4 lakh cases in High Court and about 50,000 cases in the Supreme Court. The CJI is committed to find out ways to reduce drastically the number of pending cases. The CJI himself has said before take over that he has a plan on this and he will soon unfold it.
The people and the poor whose cases are pending in the courts will be grateful to the new CJI if he can unfold his plan of action within a short period and start implementing the same. Time is running out for him as he has only a tenure of 13 months and he has to show that he means business. In January this year, the present CJI was a part of four senior judges who spoke against the then CJI and aired their grievances on a number of issues relating to the functioning of the then CJI Dipak Misra. Justice Gogoi was quite candid at that time that they we re not happy with the way the CJI had formed the bench to hear the petition relating to the unusual death of the former judge B H Loya. The Bombay Lawyers Association sought a probe by SIT into Judge Loya’s death but on April 19 this year, the three judge bench headed by the then CJI Dipak Misra gave the verdict that the death was natural and there was no reason for SIT probe. Justice Chandrachud wrote the verdict on behalf of the bench and he named some of the leading lawyers for defaming the judges.
It is expected that the CJI will now agree to a new petition for reopening the issue of Loya’s death and if Justice Chandrachud is included in the bench, he will give a relook at his April 19 verdict and his observations in the light of his recent judgments. As the history of the verdicts given by the Supreme Court shows that the yesterday’s minority opinion becomes the majority opinion of the present in the light of the emergence of new facts and new interpretations. The Loya case is a fit one to be reopened and both CJI and Justice Chandrachud have respective moral responsibility to dissect the issue in its totality.
For the Supreme Court as a whole, and especially for CJI Ranjan Gogoi, the constitutional validity of the Aadhaar Act is still open for review as the minority opinion of Justice Chandrachud is very strong and it has kept ample scope for a review of the majority judgment given last month. The case can be similar to what happened in the case of the latest apex Court’s unanimous decision of making section 377 invalid. In the present case, Justice Chandrachud held that the passage of the Aadhaar Bill as a money bill not requiring the approval of the Rajya Sabha under article 110 of the Constitution, was a fraud on the Constitution and the debasement of the Constitutional institution. He then struck down the Aadhaar Act for failing to meet the necessary requirements to have been certified as a money bill.
This observation of Justice Chandrachud can be ignored only at the peril of the Indian Constitution. CJI Ranjan Gogoi was not a member of the bench to decide on Aadhaar Act. He can now dispassionately go into the Constitutional implications by admitting any fresh petition for a review of the judgment. Similarly, there is scope for a review of the majority verdict rejecting the plea for the setting up of SIT to probe the charges against the human rights activists who are now under house arrest. Justice Chandrachud has supported this SIT in his minority dissent note and what he has said is the essence of the spirit of the Indian constitution.
CJI Ranjan Gogoi who is an erudite scholar in jurisprudence should recall the observation made by the great jurist Charles Evans Hughes, former CJ of the US Supreme court “a dissent in a court is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed”. For the CJI, he has to prove his mettle in the next 13 months by correcting the great distortions that took place in three verdicts — Loya, Aadhaar Act and the arrest of the activists. History will remember him then as a great game changer in Indian judiciary.
Nitya Chakraborty is a freelance journalist. Views are personal.
