Will Justice Gogoi Be Able to Fix a Broken Judiciary From Within?

So impossibly high are the expectations of Justice Gogoi that it is inevitable that he will fall short.

When he was appointed as a judge of the Supreme Court of India on 23 April 2012, it was fore-ordained that Justice Ranjan Gogoi would be in line to take over as Chief Justice of India in October 2018 by dint of the seniority convention.

A No-Nonsense Judge

No one, least of all Gogoi himself, could have possibly imagined that he would be taking over as the CJI in the circumstances that the court finds itself in. In his expected tenure of a year and two months, Gogoi has the unenviable task of trying to restore an institution whose credibility and reputation lie in tatters, given the events of the last two years.

Gogoi will be the first CJI from the Gauhati High Court and indeed, from India’s north-east as a whole.

His path to the Supreme Court involved a detour as the Chief Justice of the Punjab and Haryana High Court, before he was elevated as a judge of the Supreme Court of India. While dark rumours persisted about a possible super-session in light of the press conference in January this year, the government eventually followed convention and procedure in confirming his appointment to the post of CJI.

Gogoi’s biography is well known. The term ‘no-nonsense judge’ is used somewhat liberally these days, but with Gogoi it can be used literally.

Sitting in his courtroom one gets the sense of a judge in absolute control of the proceedings before him. He speaks in measured tones and rarely allows the counsel to get carried away. He does not tolerate any senior counsel trying to throw their weight around in his courtroom and is more than an intellectual match to most of them.

Gogoi’s Tryst With Controversy

With his jurisprudence as well, he is measured and careful. If Gogoi has so far not left us a bigger track record in more important cases, it can only be attributed to the machinations of CJI Dipak Misra, who has refused to include senior judges on constitutional benches hearing important matters. Given his superbly well-reasoned judgement in Adi Saiva Sivachariyargal Nala Sangam vs State of Tamil Nadu (concerning the appointment of non-Brahmin archakas in Tamil Nadu) one would have loved to read his take on religion and constitutional rights in the Sabarimala case.

But, he’s not perfect. Two controversial cases come to mind. His response to Markandey Katju’s criticism of his judgment in the Soumya Murder Case was mean spirited and ill-advised.

It ill behooves a Supreme Court judge to take criticism (even from another judge) in such a personal manner, even if it was intended to be taken personally. It sounds unfair, but there are certain obligations that come with an office of such importance and dignity, and Gogoi didn’t respond to it well enough.

Even more worrisome is his ongoing supervision of the preparation of the National Register of Citizens in Assam.

Since 2013, Gogoi has been on the bench overseeing this and as I’ve written elsewhere, his concern for speed and efficiency in preparing the NRC has come at the cost of millions of people at risk of losing their rights and livelihoods – and raising ethnic tensions across the region.

There’s also the uncomfortable fact that he is from Assam himself and leaves himself open to the accusation that his approach to the NRC case may be less than entirely impartial. One can only hope that he’s cognizant of the risks of the process.

Taking Over an Institution in Turmoil

Gogoi is taking over an institution in turmoil. Not just the Supreme Court, but the judiciary as a whole.

Internally and externally, the judiciary, and especially the Supreme Court, faces numerous challenges, the most pressing one being the crisis of credibility.

The last two Chief Justices of India have not exactly covered themselves in glory. Controversies have erupted over appointments, corruption, misconduct, impeachment, internal procedure and government interference. Their handling of all of this has been marked by the consistency with which they have failed to defend the institution of the judiciary.

Much of this may be a battle of perception and norms, but it is having a real impact on the ground. Fewer people are filing civil cases across the country as the court’s own data shows. The judiciary continues to have a serious diversity problem at the higher levels, reflecting in some of the problematic judgments we have seen concerning Dalits and women.

Will Gogoi set about addressing them? It is difficult to predict exactly what he will do but we know he’s thinking about it.

The press conference in January gained immense credibility not only because of his presence (given that he was in line to be Chief Justice next) but also because he uttered the most significant words of the press conference – his “yes” to a question indicating that it was the Judge Loya case which prompted the press conference.

Will Gogoi Address Issues Plaguing Judiciary?

It is also no coincidence perhaps that Gogoi was on the collegium when they started to make resolutions public. This happened immediately after the controversy over the transfer of Justice Jayant Patel from the Karnataka High Court and can’t help but think the two are linked. One further reason to believe that it was Gogoi who was behind this idea of making resolutions public is his judgment in Indira Jaising v Union of India. Here, his judgment set the stage for a total overhaul of the process by which senior advocates are designated by the High Courts and the Supreme Court in India.

Also evidence of Gogoi’s thinking comes in the form of the “concurring” judgment that was delivered by Justice Chelameswar and him in the Justice Karnan case.

If this judgment is any indication of his thinking, one would draw the conclusion that this is someone who’s fully cognizant of the deeper institutional issues facing the judiciary that can’t be handled by putting Karnan in jail.

Gogoi Needs to Fix the System From Within

Gogoi is perhaps fully aware of the burden of the task that lies before him. He couldn’t have missed a statement by Fali Nariman advising people to wait for Gogoi to take over to really fix things with the Supreme Court. While CJIs are inevitably snowed under a mountain of cases and administrative work, Gogoi will have to manage that and fix the processes that have broken down. He will have to take his fellow judges into confidence and undertake the kind of massive systemic reforms from within to allow the judiciary to withstand the increasing pressure it faces. He will have to put transparency above all if he needs to restore the court.

So impossibly high are the expectations of Gogoi that it is inevitable that he will fall short. He has only a term of a little more than a year to do all that he must. 

Perhaps the best he can do is to start the process of reform and trust his successors to take it forward. Even if he simply rebuilds the trust between judges of the Supreme Court to get them functioning as one unit, he will have made an immeasurable contribution to the institution.

For the sake of India’s constitutional government, one hopes he will succeed.

(Disclaimer: This article was originally published by BloombergQuint and has been republished with permission.)

(The author Alok Prasanna Kumar is an advocate based in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)