Above: As a judge, Justice Gogoi is quick to grasp the issue before him/Photo: Anil Shakya

As a new chief justice takes over shortly, there is curiosity and interest about his judgments, his judicial acumen and the path that he will pave for the Judiciary in India 

By Venkatasubramanian

The chief justice of India (CJI) is the first among equals in the Supreme Court. Therefore, the office of the CJI holds nothing more than symbolic significance in hearing of cases before the apex court or in the pronouncement of judgments.

However, this office has a unique role to play in the administration of the Supreme Court and of the entire judiciary in the country. The CJI decides the allocation of cases to be heard by his colleagues in the Supreme Court by tweaking the roster periodically. The CJI also functions as an in-house watchdog to administratively deal with serious complaints against judges of any high court or the Supreme Court. He decides which judges of the High Court or the Supreme Court will inquire into the complaints, and report about the action to be taken if there is substance in them. As the CJI, his sanction is required for the police to register cases against a sitting judge and investigate corruption complaints involving a sitting judge.

The CJI, as the head of the entire judiciary in the country, also determines the nature of the relationship between the Supreme Court collegium and the government, the biggest litigant, in making appointments and transfers of judges.

As we have seen in Justice Ranjan Gogoi’s succession to this prestigious office, his predecessor, Dipak Misra, recommended to the government that the seniormost judge after him be elevated as the next CJI. This was a key convention and ensured continuity in office after the incumbent’s retirement. But given the turbulence in recent times in the Court, there was much speculation over whether this convention would be observed by the outgoing CJI.

While the CJI’s approach to the government in power cannot be confrontational on the administrative side, he and his colleagues have to treat it like any other litigant on the judicial side and ensure accountability and transparency in governance, besides upholding the rights of the citizens.

Justice Gogoi’s tenure, which begins on October 3 and ends on November 17 next year, therefore, has raised huge expectations about the role of the Judiciary both in the judicial and administrative realms. His judicial acumen is apparent to anyone who observes him preside over the benches. He is qui­ck to grasp the issue before him and tells the counsel the consequences if the court grants his prayer and whether it is pragmatic for the court to do so.

Although some of his judgments have gone against the government and those in power, he has been always willing to review them if the counsel subsequently pointed out practical difficulties in complying with the previous orders passed by him. His judgment banning the use of leaders’ photographs in government-sponsored advertisements is one instance when he was willing to review it in open court and make modifications. While his first judgment allowed only the pictures of the president, prime minister and CJIs to be used with their consent in government advertisements, his review judgment permitted those of governors and chief ministers too.

However, he never compromises on the principles of law and evidence even if public opinion is against a particular interpretation adopted by him as a judge. His judgment commuting the death sentence awarded to convict Govindachamy in the rape and murder of Soumya was one such instance. Here he refused to yield to popular sentiment because his understanding of the law of evidence was against it.

However, when a Justice Gogoi-led bench slapped a contempt notice on former Supreme Court judge Markandey Katju in 2016, it did not go down well. This was following Justice Katju’s criticism of Justice Gogoi’s judgment in the Soumya case in a blog. He was asked to appear before the Court to assist it in reviewing it. When he did, he was charged with contempt of court despite his protests. However, Justice Gogoi dropped the contempt proceedings when Justice Katju offered unconditional apologies. To Justice Gogoi, Justice Katju’s criticism appeared to be an attack on the judges on the bench rather than of the judgment, although the distinction he drew was not entirely convincing.

Justice Gogoi is known for his strict observance of manners and decorum, both by litigants and the counsel, during the hearing of cases. He disapproves of interference and prompting by senior counsel while dictating orders and chides them for their lack of patience. Every counsel assisting the court in a case, he would say, is an officer of the court, and therefore, has certain duties to fulfil. Among such duties is the counsel’s responsibility to avoid speaking to the media on pending matters, without the authority of the court.

On August 8, Justice Gogoi, while sitting with Justice Rohinton Fali Nariman, indicted the state coordinator for the National Register of Citizens (NRC), Prateek Hajela, for speaking to the media on the options before the citizens whose names were missing from the draft list released by it. The bench considered Hajela’s conduct contemptuous, but refrained from initiating contempt proceedings against him, keeping in view the responsibilities of his office.

To Justice Gogoi, public interest litigation has its limits and every aberration in society cannot be sought to be undone through judicial intervention. Highly conscious of the jurisdiction of the courts, he always hesitates to grant prayers to encroach on the space reserved for the Legislature and the Executive—even if the latter fail to discharge their duties. Instead, he would grant as much time as possible and goad the latter to address the grievances of the petitioners.

Justice Gogoi, however, does not believe in delivering a judgment lamenting various aberrations in society with strong words in order to capture headlines. Along with the counsel, he always asks what sort of directions he could issue in the judgment which would be implementable by the Executive and which would make a substantial difference to the situation on the ground.

He does not believe in directing legislatures to fill a legislative void. He does not dispose of a petition by expres­sing concern and anguish, which would suggest helplessness and exasperation. His orders directing the centre to create special courts to try cases against politicians within a specified timeframe are one such instance which has shown results, albeit partly.

On the other hand, he did not yield to the prayers of the petitioners in the Lokpal case to choose a Lokpal from the shortlisted names as the selection committee, as envisaged under the Act, had not yet taken a decision despite several meetings. Instead, he kept expressing his hope that the Lokpal Selection Com­mittee, which also comprises the CJI, would be able to finalise a name in its next meeting.

To him, Article 142 of the Constitution, which empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, cannot be stretched to provide an excuse for judicial intervention where it is not required.

Unlike other judges who take pride in disclosing their illustrious lineage on their profiles on the Supreme Court’s website, Justice Gogoi will be remembered for being brief and to the point.

Although his father, Keshab Chandra Gogoi, was chief minister of Assam, his official profile makes no mention of this fact. It merely states: “Born on November 18, 1954. Joined the Bar in 1978. Practised mainly in the Gauhati High Court. Appointed as Permanent Judge of Gauhati High Court on February 28, 2001.  Transferred to Punjab & Haryana High Court on September 9, 2010. Appointed as Chief Justice of Punjab & Haryana High Court on February 12, 2011. Elevated as Judge of the Supreme Court on April 23, 2012.”

Justice Gogoi’s participation in the January 12 press conference, along with three of his senior colleagues, to express disappointment with Chief Justice of India Misra’s allocation of sensitive cases to preferred benches, was, according to many, a decision taken on the spur of the moment. Known for keeping institutional interests above personal stakes, Justice Gogoi never allowed his differences with the CJI to impact the discharge of his duties as a judge.

Justice Gogoi is credited with the remark that India needs noisy judges and independent journalists. His tenure, therefore, will be watched with interest for the reforms he may undertake to inspire people’s confidence in the Judiciary and for how he enhances its credibility while performing his duties through consensus and collegiality.