Paras Nath Singh

| @parasnsingh95 | September 2,2018

After months of speculations that were not entirely unjustified, Justice Ranjan Gogoi is at last set to adorn judicial firmament as the 46th Chief Justice of India (CJI). The incumbent CJI, Dipak Misra has officially recommended the name of Justice Ranjan Gogoi, the senior-most judge of the Supreme Court, as his successor.Finally, this clears the dark clouds of doubt that had surrounded Justice Gogoi’s appointment as the next CJI ever since his participation in the unprecedented January 12, 2018 press conference by the four senior-most justices— in which they had questioned the administrative functioning of the present CJI, Dipak Misra.

This clears the dark clouds of doubt that had surrounded Justice Gogoi’s appointment as the next CJI ever since his participation in the unprecedented January 12, 2018 press conference by the four senior-most justices

The Department of Justice under the Union Ministry of Law and Justice is likely to notify the appointment of Justice Gogoi as the 46thChief Justice of India in a few days to come. Before that file will go to the President of India to get the appointment of warrant signed off, routed through Prime Minister. He will take over as the next CJI on October 3, 2018 when the incumbent, CJI Dipak Misra will retire.Justice Gogoi will have tenure in the office of CJI for more than a year till November 17, 2019.

 

 

Justice Gogoi will have tenure in the office of CJI for more than a year till November 17, 2019

Earlier the Law Minister, Ravi Shankar Prasad, in terms of the existing Memorandum of Procedure (MoP) governing the method to be followed while forwarding the name of next CJI to the President of India, had written to the present CJI Dipak Misra seeking recommendation from him on his successor in the Supreme Court.

 Background of Justice Gogoi

Justice Gogoi was born on November 18, 1954. He joined the Bar in 1978 and practised mainly in the Guwahati High Court. On February 28, 2001, he was appointed as a permanent judge of the Guwahati High Court. He was later appointed as the Chief Justice of Punjab and Haryana High Court on February 12, 2011. From there, he was elevated to the Supreme Court on April 23, 2012.

Major judgments by Justice Gogoi

Justice Gogoi dissented along with Justice J Chelameswar,from the majority decision in a petition filed by former Lok Sabha speaker P A Sangma challenging Pranab Mukherjee’s election as the President

In last six years of his tenure as a judge of the Supreme Court, Justice Gogoi has dealt with a variety of cases and has some landmark and reformative judgments to his credit. In December 2012, Justice Gogoi dissented along with Justice J Chelameswar,from the majority decision in a petition filed by former Lok Sabha speaker P A Sangma challenging Pranab Mukherjee’s election as the President. He held that petition deserved regular hearing of the case, while the majority led by then CJI Altamas Kabir held petition did not deserve full and regular hearing and thus was dismissed.

Justice Ranjan Gogoi headed the bench which allowed the publication of pictures of Union Ministers, Chief Ministers, Governor and State Ministers in government advertisement. This decision came on a review petition filed by Centre, and few states, seeking a review of Court’s banning publication of leaders’ photos in advertisement except those of the President, Prime Minister and the Chief Justice of India.

Justice Markandey Katju (Retd.) was issued contempt of court notice by the bench presided over by Justice Gogoi. Notice was issued for his Facebook post where he used intemperate language against the judges

In a very unprecedented turn, Justice Markandey Katju (Retd.) was issued contempt of court notice by the bench presided over by Justice Gogoi. Notice was issued for his Facebook post where he used intemperate language against the judges after they did not impose death sentence in Soumya rape case. Later, the Court dropped the contempt proceedings upon receiving unconditional apology from Justice Katju.

In a Public Interest Litigation (PIL) filed by an NGO Common Cause challenging Search Committee Rules framed under the Lokpal and Lokayuktas Act 2013 as ultra vires, Justice Gogoi held that Lokpal Act was a workable piece of legislation and there was no justification to hold it. Since Lokpal has not been appointed so far, a contempt petition filed against the Centre government is being heard by Justice Gogoi presently.

In yet another seminal case filed by senior advocate Indira Jaising,  the bench headed by Justice Gogoi delivered a path-breaking reformative verdict on October 12, 2017, introducing an objective system of 100 points index and interview, for designating a lawyer with the distinction of being a ‘Senior Advocate’

In yet another seminal case filed by senior advocate Indira Jaising,  the bench headed by Justice Gogoi delivered a path-breaking reformative verdict on October 12, 2017, introducing an objective system of 100 points index and interview, for designating a lawyer with the distinction of being a ‘Senior Advocate’. This judgment has transformed designation from a privilege of judges into honour conferred on merits. This will go a long way in promoting merit in the legal profession and is likely to influence the reforms in appointment of High Court judges.

In Lok Prahari case, he along with Justice R Bhanumati struck down the amendment brought by the Uttar Pradesh Government permitting former Chief Ministers to retain government bungalows. Terming the amendment as “arbitrary, discriminatory and unsupported by the Constitution”, he observed that such laws create a separate class and once a public servant demits office there should be nothing to distinguish them from a common person.

Justice Gogoi dealt with the petition filed by advocate Anindita Pujari seeking crèche facility within the premises of the Apex Court and ordered to make crèche facility operational March 1, 2018

Justice Gogoi dealt with the petition filed by advocate Anindita Pujari seeking crèche facility within the premises of the Apex Court and ordered to make crèche facility operational March 1, 2018. Recently a constitution bench presided over by him held that states cannot expand the list of SCs/STs who are to get benefit of reservation in the state and the list can be extended by the Parliament only. It was further held by majority of 4:1 that pan India reservation policy is also applicable for government jobs in Delhi.

Justice Gogoi was part of seven-judge bench that held Calcutta High Court judge C S Karnan guilty of contempt of the Court. He signed off the separate but concurring judgment in that case penned by Justice Chelamsewar wherein they echoed the need to set up appropriate legal regime to deal with situations where the conduct of a judge of a constitutional court requires corrective measures – other than impeachment – to be taken.

In yet another significant judgment, he held that name of gods or holy books cannot be trademarked to sell goods and services.

He is already hearing a crucial matter pertaining to National Register of Citizens (NRC) of Assam and presently examining the Standard Operative Procedure (SoP) submitted by the Government of India for disposing the claims and objections arose out of draft NRC published by the Assam Government

In addition, he is already hearing a crucial matter pertaining to National Register of Citizens (NRC) of Assam and presently examining the Standard Operative Procedure (SoP) submitted by the Government of India for disposing the claims and objections arose out of draft NRC published by the Assam Government.

Cases awaiting Justice Gogoi’s discretion as CJI

Regarding Ayodhya case, in any event, Justice Gogoi would need to form the fresh bench to decide the case. On whether the CJI’s office should come under the ambit of the RTI Act, 2005, or not, he may also take a call on to list the matter before the Constitution Bench

There are quite a few contentious cases that are to be dealt by Justice Ranjan Gogoi, on both judicial and administrative sides, during his over one-year stint as the CJI (judicial side in case he chooses to preside over the bench). The case pertaining to prosecution of the Chief Minister of Uttar Pradesh Yogi Adityanath is to be decided. On the administrative side, he may have to take call on the formation of the Constitution Bench to examine the validity of nikahhalala and polygamy.Regarding Ayodhya case, in any event, Justice Gogoi would need to form the fresh bench to decide the case, in case Court chooses to go ahead with the hearing of the case.A batch of petitions challenging constitutional validity of Article 35A of the Constitution may also come up before Justice Gogoi. On whether the CJI’s office should come under the ambit of the RTI Act, 2005, or not, he may also take a call on to list the matter before the Constitution Bench.

Whether Executive can segregate one name from the recommendation made by the Collegium and notify the appointment of the other one that eventually disturbs seniority of the proposed judges in the Supreme Court — as happened in the case of Justice K M Joseph — is an issue that may be decided on the judicial side by the Supreme Court in the days to come. Law is not settled on this point. Nothing authoritative is available in case laws either. It may be noted that a Public Interest Litigation (PIL) filed by one GD Inamdar, a retired district judge from Solapur district in Maharashtra, questioning segregation of Justice K M Joseph’s name is pending before the Supreme Court since April 28, 2018. This PIL has not come up for hearing even for once since the day of filing.

Appointment of judges & Memorandum of Procedure

Articles 124 and 217 of the Constitution are the source of the appointment of judge of the Supreme Court and the High Court respectively. MoP is only an understanding in writing arrived between the Collegium and the Executive to govern the process how the Collegium make the recommendation, and how the same would be dealt with by the Executive.

The standoff between the Union Government and Supreme Court Collegium over the finalisation of MoP is yet to be resolved. The exercise of revisiting the existing MoP has initiated in view of the Supreme Court’s order dated December 16, 2015 in NJAC case, whereby Court accepted the submission of then Attorney General, that the Memorandum of Procedure and introducing amendments therein, had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India. It often comes out in public that Government is not cooperating with the Collegium in finalizing the new MoP.

Now it is on the shoulders of Justice Gogoi who will be heading the Collegium, to get the MoP finalised.

The Collegium headed by the Justice Gogoi will have to undertake the task of filing up those vacancies at the earliest. Similar is the situation in the High Courts across the country

Further, by the end of this year, two more judges namely Kurian Joseph and Madan B Lokur, of the Supreme Court will get retired, that will led to eight more vacancies in the Supreme Court against the sanctioned strength of 30+1. The Collegium headed by the Justice Gogoi will have to undertake the task of filing up those vacancies at the earliest. Similar is the situation in the High Courts across the country, which too have huge numbers of vacancies.

In last couple of years, it has been seen that the Executive has been arm-twisting the recommendations of the Collegium and sitting over them for quite a long time. This is an important area where the Collegium headed by Justice Gogoi may have to take a stand against Executive for its inactions on the recommendations made by the Collegium.

Expectations from Justice Gogoi

Justice Gogoi along with his three brother judges had questioned the assignment of cases to the alleged “benches of preference” by the current CJI. Thus, in essence, it was the role of CJI as Master of Roster that called into question not any judicial verdict passed by the CJI. The question, therefore, is whether Justice Gogoi be consulting with brother/sister judges while making the roster? Or Assignment of cases will remain unilateral decision by the Master of Roster as being done by CJI Dipak Misra all along. The answer lies in time, not in anticipation, assumption or presumption. But one thing is cleared that after taking high moral ground then, it would be travesty if Justice Gogoi too follows the doctrine of Master of Roster the way present CJI followed.

Speaking to The Leaflet, Senior advocate Indira Jaising said:“Justice Gogoi would need to take the lead in protecting the freedom of speech and expression at a time when dissent is being stifled and human rights activists are being jailed arbitrarily.”On the issue of judicial transparency, she added: “Collegium should also disclose the reasons for rejection and accepting names for appointment of judges”.

Sunil Fernandes, Advocate on Record (AoR) in the Supreme Court speaking to The Leaflet, said:“I hope that the Justice Gogoi, when he does assume charge as the CJI, would be more assertive in preserving and enforcing the primacy of the judiciary in matters pertaining to appointment of judges in higher judiciary. The unmistakable and inexorable impression he had (no doubt shared by many) that the current incumbent was not very successful in this crucial area. A robust independent judiciary is of vital importance to India and her democratic institution.”

Paras Jain, a young lawyer and RTI activist, speaking to The Leaflet said: “In terms of transparency CJI Dipak Misra has done enough on his part. Next thing is to ensure timely justice and filling up of vacant positions in all judicial and quasi judicial bodies.”

Justice Gogoi’s participation in the January 12, 2018 press conference in the company of brother judges set his stock soaring within both the legal fraternity as well as civil society members concerned about the erosion of civil rights. He expanded on the “vision of justice” when he delivered this year’s Ramnath Goenka Memorial Lecture at the prestigious journalism award ceremony organized by The Indian Express. He said that India at present needs “not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges”, in order to be a truly democratic and just society.

Now as his appointment as the next Chief Justice of India has got the stamp of certainty, Justice Ranjan Gogoi has to live up to that promise to the best of his abilities.

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