Ever since the press conference by four senior-most judges, namely Justice Jasti Chelameswar, Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph of the Supreme Court on January 12, 2018, speculations are doing rounds whether Justice Ranjan Gogoi would be superseded by the executive. Justice Gogoi is in line to becoming the 46th Chief Justice of India (CJI) with effect from October 3, 2018 up to November 17, 2019 by virtue of the convention of seniority.
In the press conference, the four senior-most justices told the nation that situation in the apex court was not in order and that “democracy was in danger”. They went on to say that they “discharged their debt to the nation” by pointing to the fact that democracy was in danger. In essence, they questioned the arbitrary functioning of the present CJI, Dipak Misra and the assignment of cases to “benches of preference” by him in the guise of being the “master of roster”, the doctrine reiterated by him for himself while presiding over a five-judge constitution bench.
Ground for speculation
Union Minister for Law and Justice, Ravi Shankar Prasad held a press conference in New Delhi on June 18, 2018, on the initiatives taken by the Government of India over the last four years, wherein a question was put to him by a journalist asking if Justice Gogoi would be the next CJI? The Minister initially said that the question asked was “imaginary”. However, he went on to add: “There was no reason to doubt the intention of the government. There is a convention in place and let CJI forward the name of his successor and then the government would discuss on it.” The Minister, therefore, meant that if the outgoing CJI recommends senior-most judge for the appointment of his successor, Justice Gogoi would obviously be the next CJI. The minister by saying so has passed the buck to CJI, Misra.
The question put to the Union Law Minister, though an important one, was asked to the wrong person. Since the answer to it was obvious, i.e. the senior-most judge in line would be next Chief Justice of India, unless the central government has some other plan in the works. However, the Union law minister chose his words very carefully and left enough scope for speculation, rather than clarifying the position of the government on the seniority convention for the appointment of the next CJI. On the other hand, it is also true that as per the existing procedure, the Government of India, and for that matter, the Union Law Minister, have little role to play in the appointment of the CJI.
It may be recalled that the national president of Bharatiya Janata Party (BJP), Amit Shah, in a programme hosted by the news channel Aaj Tak on May 26, 2018 said that the next Chief Justice would be the one recommended by the outgoing CJI, Dipak Misra. Both the law minister and the BJP president had one thing in common in their statements: The next CJI would be the one nominated by the incumbent CJI.
Appointment of CJI: Existing procedure
The Constitution of India does not provide for any specific procedure for the appointment of the Chief Justice of India. Article 124(2) of the Constitution provides for the appointment of judges to the Supreme Court by the President of India. The President of India only appoints the CJI in exercise of his power under Article 124(2) of the Constitution of India.
The existing Memorandum of Procedure (MoP) has laid down the method to be followed while forwarding the name of next CJI to the President of India, soliciting the approval of latter. As per the existing MoP:
“Appointment to the office of the Chief Justice of India should be of the senior-most Judge of the Supreme Court considered fit to hold the office. The Union Minister of Law, Justice and Company Affairs would, at the appropriate time, seek the recommendation of the outgoing Chief Justice of India for the appointment of the next Chief Justice of India.
Whenever there is any doubt about the fitness of the senior-most Judge to hold the office of the Chief Justice of India, consultation with other Judges as envisaged in Article 124 (2) of the Constitution would be made for appointment of the next Chief Justice of India
After receipt of the recommendation of the Chief Justice of India, the Union Minister of Law, Justice and Company Affairs will put up the recommendation to the Prime Minister who will advise the President in the matter of appointment.”
The bare reading of the procedure as mentioned above would indicate that the appointment of the CJI would be of the senior-most judge of the Supreme Court, but with a caveat of him being “fit to hold the office”. Also, it is for the incumbent CJI to recommend a name for the appointment of the next Chief Justice of India on being solicited by the Union Minister for Law and Justice.
In substance, the recommendation of a name for the next CJI originates in the office of the outgoing CJI. The role of the executive is, therefore, secondary in the appointment of CJI.
Interrogating the idea of ‘fitness’
However, look at the loopholes carefully in the procedure of appointment. It says ‘‘appointment to the office of the Chief Justice of India should be of the senior-most Judge of the Supreme Court considered fit to hold the office’’. It does not, however, explain “considered fit by whom”? Is it by the CJI, or the executive? Also, is it only a physical and mental fitness, or something more than that? Importantly, the MoP does prescribe for the consultation with other judges of the Supreme Court in case doubt on the fitness of senior-most judge to hold the office of CJI arises.
If the word “fitness” in the MoP means more than mere physical or mental fitness, in that case, can the press conference by the four senior-most judges, including Justice Gogoi, become a reason to make him “unfit” to hold the office of the CJI? Also, if this is the case, then the other two judges, namely Justices Lokur and Kurian, would also be treated as “unfit” to hold their respective offices.
Let it be clear that there is absolutely no embargo, either legally or otherwise, that a judge cannot hold a press conference; more so when the press conference pertains to purely administrative functioning of the institution. One may recall that former CJI T S Thakur broke down in a joint conference of chief ministers and chief justices of high courts, which the Prime Minister also attended. Former CJI Thakur lamented the non-appointment of judges and vacancies unfilled, obstructing the administration of justice. Another former CJI, P Sathasivam before taking charge of the office of CJI, gave an interview to a newspaper saying the judiciary was not untouched by corruption.
Reinforcement of citizen’s right to know
Judges are, however, not expected to speak on their judgements, for they speak for themselves. Thus, the press conference can hardly be a reason for declaring Justice Gogoi unfit to hold the office of CJI.
The Supreme Court of India in State of Uttar Pradesh vs. Raj Narain, (1975) 4 SCC 428, observed:
In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but be few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.
The press conference by the four-senior most judges is nothing but a reinforcement of the people’s right to know. They brought to the notice of the public the problems with the administrative functioning of the Supreme Court, which was compromising the independence of judiciary and destabilising democracy. By no stretch of imagination, such an attempt can be construed as a “misconduct” and can be deemed as a reason to hold any one of the four senior-most justices as “unfit” to hold their respective office, and for that matter, the office of the CJI. Rather, those four judges have been true to their oath of office and live up to the standards of upholding constitutional morality that is expected of them.
Breach of the seniority rule in the past
As a matter of convention, the senior-most puisne judge of the Supreme Court has always been appointed as the CJI. It is the seniority rule that has prevailed, except for two occasions in post-1970 period. The rule of seniority was first violated by the executive in 1973 when Justice A N Ray was appointed as the CJI, superseding three senior-most judges, including J M Shelaat, K S Hedge and A N Grover. They had pronounced against the government in the Kesavananda Bharati vs State of Kerala case, holding that Parliament had no power to alter “the basic structure of the Constitution”, while Justice Ray supported the stand of government arguing that there were no restrictions on Parliament’s power to amend the Constitution.
It was alleged before the Delhi High Court by one, P L Lakhanpal who unsuccessfully challenged the appointment of Justice Ray as the Chief Justice of India, that the outgoing Chief Justice S M Sikri was not only not consulted, but was not even informed that the Government planned a change in the practice of senior-most puisne judge to be the next CJI.
Supersession of Justice H R Khanna is the second and the last one in the row. Justice M H Beg was appointed as the CJI on January 29, 1977, denying office of the CJI to Justice Khanna, who decided to resign as a judge at that moment itself. Justice Khanna was the sole dissenting judge in five-judge constitution bench headed by CJI Ray, which held in the infamous ADM Jabalpur case that the legality of detention orders, even if mala fide and without authority of law, could not be questioned due to proclamation of Emergency by the President of India on June 25, 1975. Justice Khanna’s dissent against the majority opinion in favour of the Indira Gandhi government cost him the CJI office. It’s another matter that in the annals of jurisprudence, Justice HR Khanna’s name has a pedestal unmatched by any other judge, given the echoes of his dissenting judgment in the ADM Jabalpur case that could be heard even now, especially in the landmark Right to Privacy judgment. In fact, Justice Rohinton Fali Nariman in his judgment in the Right to Privacy case, described HR Khanna’s contribution in the ADM Jabalpur case as one of the “three great dissents” of Indian jurisprudence.
It must be noted that in both of these previous instances of supersession of the senior-most puisne judge, the suppression came directly from the executive. However, in the case of the ascension of Justice Gogoi, the executive maintains that it will respect the recommendation of the incumbent CJI, Dipak Misra. Hence, the onus of nominating Justice Ranjan Gogoi’s name for the post of the Chief Justice of India remains with the current CJI, Dipak Misra.
Shadows of Emergency
At present, the judiciary is going through a very difficult time after the onslaught it faced during the Emergency way back in 1975. Its independence is being undermined by the executive repeatedly. For instance, it has been more than a year when the Collegium recommended for the transfer of Justice K M Joseph to the High Court of Andhra Pradesh on the request of latter; the government has not acted on the recommendation yet. Recently, nation witnessed segregation of Justice Joseph’s name from the file on the appointment of judges to the Supreme Court, which included the name of Indu Malhotra.
The reluctance towards and the stonewalling of the appointment of Justice K M Joseph stems from his 2016 judgement as the chief justice of the Uttarakhand High Court, holding President’s rule in the state as “unconstitutional”, antagonising the BJP-led central government in his trenchant criticism of the latter’s role in destabilising the federal structure of our parliamentary democracy.
If a report published in media is to be believed, government has returned for the second time the names of two Muslim lawyers recommended by the Collegium for the appointment as judges of the Allahabad High Court. This is in gross contempt of the Supreme Court’s judgment in the second judges case, which mandates that once the name is reiterated by the Collegium, government has no option but to give effect to the recommendation.
Such a blatant contempt of the court by the executive does indicate that there is no guarantee that Justice K M Joseph will indeed be appointed to the Supreme Court, even if his name is reiterated by the Collegium. It’s evident that the executive is keen in packing the court with judges of its choice, as was done by the then former Prime Minister Indira Gandhi.
Present danger to Justice Gogoi’s appointment as the next CJI
Move to breach the convention of appointing senior-most judge as the CJI has always come from the executive rather the institution of judiciary itself. Unlike the case in 1973 and 1977, at present the judiciary is witnessing a deep fissure within its own bastion. But the break has been engineered from without. The house is divided on principled lines, as is evident from the reference to cases being assigned to “benched of preference” and the fissures are visible.
For the past few months, the judiciary as an institution is passing through a big turmoil. The historic press conference by four senior-most judges has literally exposed the rot within the institution, in particular the office of the CJI. Yet, there’s no course correction in sight. Roster is still a muddle for all the huddle! The elevation of Justice K M Joseph is pending in the office of the CJI, since he last convened the meeting of the Collegium on May 16, 2018. The reiteration of Justice Joseph’s name that ought to have been done on priority basis, has been put in limbo. The Memorandum of Procedure (MoP) has not yet been finalised. The executive is arm-twisting the recommendations of the Collegium, and not even accepting the names despite their reiteration by the Collegium. It is also sitting over the recommendations for a considerably long time that in turn contributes to making the institution dysfunctional.
Justice Chelameswar, Justice Gogoi, Justice Lokur and Justice Joseph have already written to the CJI, requesting him to call for a full court on the judicial side to discuss the issues at hand. However, the CJI has not taken a call. It appears that CJI is determined to not put the government in a spot for the reasons best known to him. Therefore, the circumstances surrounding the office of the CJI create grounds for suspicion on whether the outgoing CJI would be recommending name of the senior-most judge of the time, Justice Gogoi, for the latter’s appointment as the CJI.
It is the incumbent CJI who has the primary role to play in the appointment of next CJI; the government has to act only on his recommendation. The question which was posed to the Union Law Minister ought to have been asked to the CJI. In any case, the correct answer to this question would be available only in the last week of September 2018, since the present CJI would be retiring on October 2, 2018.
Since the Chief Justice of India is the repository of the constitutional trust, he must always be expected to consider not breaching a long-established convention of recommending the senior-most judge as the next CJI. Will CJI Misra live up to this expectation?
First published in The Leaflet.