Among the four senior-most Supreme Court judges who were seen rebelling against the Chief Justice of India at the press conference last Friday, the presence of Justice Ranjan Gogoi had a special significance. In the normal course, Gogoi would be elevated to the post of the Chief Justice when the present incumbent, Dipak Misra, retires in October. The irony of this is that Misra, against whom Gogoi registered his protest, has to recommend him to the government for his elevation to the highest judicial post in the country. That is the revered convention, though it had been broken twice by Indira Gandhi, leading to turmoil in her days.
When asked whether the allotment of the case of Judge B H Loya, whose mysterious death is being probed, had anything to do with the protest, he just nodded but nothing more.
Despite reassurances, what happens officially seems to confirm the allegation of the four judges. Gogoi has not found a place in any of the constitution benches, now sitting in the Supreme Court, over which Misra presides. One of the main allegations by the Famous Four against the Chief Justice was that sensitive cases are allotted to judges ignoring seniority, often cherry-picking juniors for no apparent reason. For instance, the constitution bench currently hearing the Aadhaar case has none of the senior judges who went public on the lawns of Chelameswar’s residence.
Normally, constitution benches have senior judges, though juniors are also included, depending on their expertise and background. The fact that Gogoi is not on any of the constitution bench cases listed for the current season appears anomalous, however.
The formidable list of cases before the current bench includes, apart from Aadhaar, hot-button issues like whether a law-maker facing criminal trial would stand disqualified, entry of women into the Sabarimala temple in Kerala, a Parsi woman’s religious status while marrying a man outside her community, whether a married woman would be guilty of adultery and LGBT rights. The bench over which the Chief Justice presides will decide all these issues. The rebels have no room on the bench.
Thus, while the Chief Justice is presiding over the constitution bench of five judges in the adjacent court room, Gogoi was given a list of cases on Thursday that are referred to officially as “simple money and mortgage matters”, a few appeals by ordinary criminals and some petitions by wives who want their divorce cases to be transferred to a place convenient to them.
Known for his strict conduct of the court, Gogoi, 64, is the son of a former Assam chief minister. He started his practice in the Gauhati high court where he was elevated as a judge in 2001. He was later transferred to the Punjab and Haryana High Court where he became the Chief Justice. He joined the Supreme Court in 2102. Now the speculation is whether he has lost his chance to become the first Chief Justice from the north-east by raising an unprecedented ruckus in the judiciary at a historical juncture.
Even if the differences are patched up, the next nine months might have unpleasant undercurrents.
Gogoi is not a prolific writer of judgments like the present Chief Justice. But his range is wide. He recently laid down norms for giving the title “senior advocate” to lawyers, a contentious issue in the legal profession. Indira Jaising, the lawyer who moved the petition, won half the battle in bringing order to the current system in which political influence and corruption played a role. The judgment bordered on legislation.
The judge also ruled in the case Ram Nath vs Goberdhan that under the Hindu Women’s Right to Property Act, upon the death of a Hindu man, his widow became entitled to a share in the joint family property. In this case involving four women and five men, the women got just portions after the judge made intricate calculations over 10/144th share, after depicting a huge family tree. He has also delivered significant judgments on trademarks, income tax and sick industries.
Gogoi’s competence is unquestioned. When he becomes the Chief Justice, his main task would be to set down some rules by which benches are constituted. It is woolly convention which led to the present crisis. Parliament has not been able to codify its privileges and goes largely by conventions. Can the judges get together and lay down guidelines to make sense of conventions? This is the challenge facing the present and next Chief Justice.