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

Photo Illustrati­on by TANMOY CHAKRABORT­Y

Born in a fam­ily of lawyers and politi­cians, the CJI, who took charge on Oc­to­ber 3, has ne­go­ti­at­ing skills in his genes

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