A NEW COURT IS IN SESSION
With approaching elections and a pile-up of high-profile cases, the year ahead brings formidable challenges for the court of new CJI Ranjan Gogoi, but in tow comes the opportunity to assert the centrality of the apex court
Ihave a plan.” When Justice Ranjan Gogoi confided in young lawyers at a Youth Bar Association lecture in New Delhi on September 29, just three days before donning the robe of the Chief Justice of India (CJI), heads jerked up. For ears used to hearing brusque, “Arguments heard,” that genial informality created an almost traumatic effect. “Two things are troubling me,” he said, “pendency of cases” and “providing justice to the povertystricken population”. As he explained how people sometimes get justice after two or three generations in civil cases, calling for “everyone’s support,” to put his action plan into effect, the auditorium echoed with thunderous applause.
Take a truth test: walk up the majestic flight of steps to the iconic building of the Supreme Court of India. Stand below the classical pediment. Take in the sea of people robed in black and white. Walk through the colonnaded portico, down the rows of courtrooms. You will get to
see the gavel-to-gavel action of the nation’s highest court in just 11 out of 15 halls of justice. What about the rest? No judges to fill those with. In fact, active courtrooms may just gradually shrink to nine, as CJI Gogoi takes charge for 11 months. The presiding judges of court 2, 3, 4 and 9—Justices Kurian Joseph, Madan Lokur, A.K. Sikri and A.M. Sapre—are due to retire between November 2018 and August 2019. Starting with just 25 judges, six below the sanctioned strength of 31, and a flood of more than 31,000 new cases and counting every month, it’s challenging times ahead for the new CJI’s court for sure.
Best of Times
So begins a new era in the Supreme Court. In many ways, it’s the best of times to be a chief justice. With 20 high-profile verdicts in five days just a week before CJI Gogoi took charge, the Supreme Court has changed the public discourse of the nation. From Aadhaar to adultery, criminal politicians to civil activists, Ram Janmabhoomi to Sabarimala, live-streaming to quota in promotions, India is buzzing with excitement—what the verdicts mean, how cool the judges are, what is a constitutional right—in bus queues, at homes, in offices, on social media. The Supreme Court has never asserted its centrality in the life and times of the nation as it has done in the last week of September.
In this super-heated atmosphere of right, wrong and everything in between, what went unnoticed was a petition challenging the new CJI. Tucked away somewhere in the long list of daily cases at courtroom 1 on September 26, two ‘interlocutory applications’—filed when a question of law needs to be answered to bring urgent relief—sought the quashing of CJI Gogoi’s appointment, for his role in a press conference on January 12, for ‘judicial impropriety and misconduct’, and for trying to ‘arouse public furore’
“Independent judges and noisy journalists are democracy’s first line of defence.” — RANJAN GOGOI, Chief Justice of India
in the name of ‘internal differences’ in the court. “Devoid of merits” and “dismissed,” pronounced the outgoing CJI Dipak Misra, albeit with an enigmatic statement: “The calmness of the Pacific is better than anything else.”
Measure of a Man
CJI Gogoi comes with a reputation seemingly made of titanium: six days before he takes over, a petition nearly throws a spanner into the works; six months before his name is recommended, a parliamentary committee starts talking about raising the retirement age of Supreme Court judges by two years, a move that would have eliminated Justice Gogoi’s chances; until September 4, the day former CJI Misra endorses his name as the next CJI, the whispers in the corridors of power have been about how rattled the Narendra Modi government is by a judge who dares to take part in a ‘palace revolt’ and claim “democracy is at stake in India”, pointing a finger at the top political leadership for the mysterious death of a CBI judge. Clearly, here is a CJI as the watchdog of the Constitution, the very mention of whose name creates rifts of polarity (or is it panic?) in some quarters.
At the heart of the Supreme Court is the chief justice. In theory, he might be the ‘first among equals’, but in reality he is the fulcrum of the court, defining its juridical as well as jurisprudential premise, explains N.R. Madhava Menon, legal scholar and IBA chair professor, National Law School of India University (NLSIU), Bangalore. The CJI plays a key role in appointing new judges, leading the collegium, filtering PILs, assigning cases to judges, and formulating Constitution benches. It’s also the CJI, who, with his clear understanding of both workload and output, reforms the court, takes control of overflowing dockets, reverses whatever is not in order or is less than desirable—exactly what Justice Gogoi and his colleagues protested against at their January 12 press conference.
The CJI also faces the challenge of presenting a unified face of the collegium. Not an easy task, as the composition and dynamics of the collegium, the decision-making core of the court, are slated to change repeatedly during his tenure. Upto November 29, 2018, the five members of the collegium will be CJI Gogoi, along with Justices Lokur, Joseph, Sikri and Sharad Arvind Bobde. From December, Justice N.V. Ramana will enter, followed by Justice A.K. Mishra after March and Justice R.F. Nariman after November. Court insiders say Justices Bobde, Ra-
mana and Sikri, all future CJIs, tried to mediate to resolve the crisis between Justice Misra and the four judges of the press conference. “A revolution, not reform” is needed to keep the institution of judiciary “relevant”, more “proactive” and on the “front foot”, the CJI said on July 13. Will the new court manage to work together and restore the sliding public confidence in the judiciary?
Burden of Backlog
The new CJI does need support. According to the data available with the National Judicial Data Grid, the backlog has reached an alarming level of 33 million, up from about 20,000 in the late-1990s. Of these, 27.8 million cases are pending in the subordinate courts, the backbone of the justice delivery system, 4.3 million at the 24 high courts, while the Supreme Court has a pendency of over 54,000 cases. Of these, 40 per cent are more than five-years-old. Worryingly, the flood of cases at the apex court is rising disproportionately, compared to the high courts and lower courts, as pointed out by legal scholar Nick Robinson, the author of Law and Other Things. There has also been an excessive rise in tax, commercial and arbitration cases in the last decade. Writ petitions filed for a violation of fundamental rights are on a decreasing trend in the court’s docket, while special leave petitions (SLPs) or appeals challenging rulings of lower court are rising. Public interest litigations (PILs), which lead to some of the most consequential judgments, take up not more than 2 per cent of the court’s docket.
Add to it the pain of having one of the lowest judge-population ratio in the world. Compared to 107 judges per million in the US, 41 in Australia, 75 in Canada and 51 in the UK, India has just 18 judges per million people, despite the 1987 Law Commission’s recommendation of 50. It is also far lower than the ratio of police officers—42 per million—says the Supreme Court report, ‘Subordinate Courts of India: A Report on Access to Justice’, 2017. As on January 2018, according to the Court News of the Supreme Court, there are 403 vacancies against a sanctioned strength of 1,079 (37 per cent) in the high courts and 5,676 against 22,704 (25 per cent) in the district and subordinate courts. The number of judges has declined in the high courts of Calcutta, Himachal Pradesh, Gujarat, Tripura, Manipur and Orissa. The working strength has increased in all other courts, peaking in Madras and Bombay.
An Election Year
CJI Gogoi’s court would cover the period of the next Lok Sabha elections in April-May, 2019. And before that,
polls in at least five states: Chhattisgarh, Madhya Pradesh, Rajasthan, Telangana and Mizoram. Going by recent elections in Arunachal Pradesh or Uttarakhand, the Supreme Court may just have to step in: in May, the court questioned the rationale behind the Karnataka governor’s decision to invite the BJP to form the government when the Congress-JD(S) had the majority strength, ordering a floor test in the state assembly. In 2016, the court had stepped in to “set the clock back” in Uttarakhand and Arunachal Pradesh for constitutional violations in the manner in which the governors issued orders that led to the formation of new governments in the states. The new court under CJI Gogoi will have to remain vigilant to ensure free and fair elections. New political strategies are playing out already: coming up soon at the apex court is a plea challenging the dissolution of the Telangana assembly on September 6, nine months before its term ends.
The BJP is exploring the possibility of holding as many assembly polls simultaneously with the Lok Sabha election as possible: advancing polls scheduled in Maharashtra, Haryana, Jharkhand and Bihar or deferring those in Madhya Pradesh, Rajasthan, Chhattisgarh and Mizoram. Elections in Odisha, Andhra Pradesh and Telangana are anyway due by mid2019. There is also talk about Prime Minister Narendra Modi and the Niti Aayog pushing the envelope toward ‘one-nation-one-election’ in 2019. For simultaneous elections, the states that go to polls before Lok Sabha, would have to be put under President’s rule. And that has been repeatedly questioned in the Supreme Court. In S.R. Bommai versus Union of India (1994), the court restricted arbitrary impositions of President’s Rule. A 13-judge bench in the Kesavananda Bharati versus State of Kerala (1973) laid down that President’s rule can be imposed only in cases of failure of the constitutional machinery in a state.
Hot Button Cases
As the Supreme Court begins its new term, the justices consider cases on issues as diverse as corruption at the highest levels, right to religious liberty, citizenship and immigration, crime and punishment of MPs and MLAs, special status for Jammu and Kashmir, and women’s right to equality in law and practice. Leading the docket, from October 10, is a PIL challenging the purchase of 36 Rafale fighter jets from the French firm Dassault. That a bench led by CJI Gogoi has admitted it and allowed the petitioner to submit documents, indicates that the court is serious regarding its duty to hold the powerful to account.
What threatens to raise tensions is the preparation of the National Register of Citizens (NRC) of Assam, CJI Gogoi’s home state. A special bench of CJI Gogoi and Justice Rohinton Nariman has seen the government publish the second and final drafts of the NRC. The court will now examine the procedure to record the objections and claims of over 40 lakh people left out of the NRC. On the flip side of citizenship, the court has been hearing a petition filed by two Rohingya Muslim refugees challenging the government’s move to deport them.
Other contentious issues include criminal cases pending against MPs and MLAs in all states, 18 of which have not yet complied with the December 2017 court order to furnish detailed reports. A case on the validity of Article 35A, according special rights and privileges to the citizens of Jammu & Kashmir, is on the anvil. Revoking Article 35A was on the BJP’s manifesto in 2014. The case has been listed for January 2019. Of the long-simmering cases that make a comeback ahead of every election season, the most significant is the politically-charged Ram jan ma bhoo mi BabriMasjidc ase. Lawyers following the case for decades say that if the judgment comes before the 2019 Lok Sabha elections, it is likely to have a tremendous impact at the hustings, whichever way the verdict goes.
Calm, at Last
After four years of battles with the government, simmering tension and mistrust in the collegium, unsavoury allegations of forum-shopping, bench-fixing, blackballing, browbeating, to-ing and fro-ing, the call for impeachment of a chief justice, there is calm, at last. All eyes are now on the Supreme Court: is it an apparent calm on the surface of the ocean? Or will untoward weather activate aberrant undercurrents in various corners of the court and the nation? “Independent and noisy judges are democracy’s first line of defence,” CJI Gogoi has famously said. Let’s hope the Supreme Court manages to speak in one voice, at least.
“At the heart of the Supreme Court is the Chief Justice. In theory, he might be the ‘first among equals’, but in reality, he is the fulcrum of the court, defining its juridical and jurisprudential premise” — N.R. MADHAVA MENON, IBA chair professor, NLSIU, Bangalore
Born in a family of lawyers and politicians, the CJI, who took charge on October 3, has negotiating skills in his genes