In the great drama that is the Indian judiciary, actors and roles change frequently. The script, however problematic, remains consistent.
In January 2018, four senior judges of the Supreme Court – J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – concluded that India’s democracy was in peril. They held an unprecedented press conference, charging the then Chief Justice Dipak Misra of violating conventions and allowing interference from the executive. Their antidote to the deteriorating situation was the sunlight of public scrutiny.
When Misra retired, his job went to one of the four rebel judges. Not surprisingly, expectations ran high of a clean-up that would restore the Supreme Court’s majesty and independence. But three months into Gogoi’s tenure, there is a sense of deja vu. His functioning as the master of the roster and as the head of the collegium, which appoints judges to the higher courts, has drawn severe criticism. His actions are no different than his predecessor’s, Gogoi’s critics point out, making one wonder what that historic press conference really achieved.
In 2018, when Justice KM Joseph’s elevation to the Supreme Court was resisted by the Centre, almost everyone in the judiciary felt the collegium must put its foot down and reiterate its decision. Gogoi was a member of this collegium. It rightly decided to stick to the decision to elevate Joseph, although it gave in to the government on the issue of his seniority.
Misra was blamed for ceding ground on Joseph’s seniority. Questions were raised on why the collegium felt it necessary to club his reiteration with a resolution to elevate two other judges, thereby giving the government the opportunity to make Joseph the junior-most of them.
If that was a transgression, what happened on January 10 was even more serious. A new collegium under Gogoi decided to review a recommendation made in December to fill two vacancies in the apex court with Rajendra Menon and Pradeep Nandrajog, chief justices of Delhi and Rajasthan High Courts respectively.
In a resolution on January 10, the collegium said:
“The then Collegium on 12th December, 2018 took certain decisions. However, the required consultation could not be undertaken and completed as the winter vacation of the Court intervened. By the time the Court re-opened, the composition of the Collegium underwent a change. After extensive deliberations on 5th/6th January, 2019, the newly constituted Collegium deemed it appropriate to have a fresh look at the matter and also to consider the proposals in the light of the additional material that became available.”
This meant instead of Menon and Nandrajog, the collegium decided to elevate Dinesh Maheshwari, chief justice of the Karnataka High Court, and Sanjiv Khanna, a judge of the Delhi High Court. Curiously, the December decision was never made public.
So opaque is the collegium’s functioning the public has no idea about the “additional material” that led to the revocation of the December decision. What was so serious in this material that made the collegium rethink its decision to elevate two High Court chief justices? It was a drastic measure given that four of the five judges who made up the collegium in December continue in their positions. What compelled them to overturn their own decision from just about a month ago?
Another problem is that the January 10 resolution claimed the collegium took into account the seniority of High Court judges as well as their merit and suitability for elevation before making its selection. Yet, at least 30 judges were superseded to appoint Khanna, who can now become the chief justice in 2024 after Justice DY Chandrachud. The irony is that Khanna’s uncle, Justice HR Khanna, resigned from the Supreme Court in 1976 after he was superseded by the Indira Gandhi government.
As former Delhi High Court judge Kailash Ghambir noted in a letter to President Ram Nath Kovind, the lack of any information about what changed the collegium’s mind has put a question mark on the reputation of 30 judges who have been superseded.
The collegium has also not offered any reason as to why it elevated Maheshwari even though it had superseded him in November.
These decisions have caused a rift in the Supreme Court itself. Justice Sanjay Kishan Kaul has already written to Gogoi expressing concerns about the seniority principle not being followed in the current round of elevations.
Interestingly, the Centre accepted the recommendations with alacrity. It had stalled Joseph’s elevation last year citing seniority, but took no issue with Khanna getting a seat on the Supreme Court. The President confirmed the appointment of Khanna and Maheshwari on Wednesday, just six days after the collegium recommended them.
New Ayodhya bench
Another of Gogoi’s controversial decisions this month was changing the bench that is hearing the Ayodhya dispute. On January 8, the Supreme Court registry put out a statement that a five-judge bench would take over the case. Apart from Gogoi, the new bench comprises SA Bobde, NV Ramana, UU Lalit and DY Chandrachud, all of whom are in line to become chief justices.
Until September, this case was heard by a three-judge bench comprising Misra and Justices Ashok Bhushan and Abdul Nazeer. That bench, by refusing to send a 1994 judgement for review to a larger bench, had indicated that appeals against the title suit would be placed before a three-judge bench again for final hearing.
Explaining the change in the composition of the bench, the Supreme Court said:
“Order VI rule 1 of the Supreme Court Rules, 2013 prescribes the minimum numerical strength of the Bench and it is always open for the Hon’ble Chief Justice to decide, having regard to the various relevant facts and circumstances, which cannot be exhaustively laid down, to constitute Benches of such strength that the Hon’ble the Chief Justice deems it proper. This is how the present bench of five Judges has been constituted which is, in no way, contrary to what has been laid down by the Three Judges Bench in the aforesaid judgment and order dated 27th September, 2018.”
Gogoi has essentially used his powers as the master of the roster to constitute a larger bench, although no constitutional question was being decided to necessitate it. This bench also did not have the two judges of the previous bench – Bhushan and Nazeer. Misra had retired in October.
During the proceedings on January 10, Lalit recused after it was pointed out that he had appeared as a lawyer in a matter connected to the Ayodhya controversy in 1997. Given the nature of the bench, which comprises judges who would be chief justices in the future, there is a strong chance that Khanna could take the place of Lalit when the case comes up for hearing on January 29.
Gogoi questioned Misra’s functioning at last year’s press conference, yet one can argue that he has repeated some of Misra’s mistakes. First, there was no necessity for a five-judge bench in the Ayodhya case as no one had requested it after the court in September decided not to review the Ismail Faruqui judgement of 1994, in which it held in a particular context that mosques are not essential to Islam.
Gogoi has justified his actions by invoking the administrative powers of the chief justice as the master of the roster. In November 2017, when Misra hurriedly formed a five-judge bench to nullify the order of another bench, he was accused of misusing his powers of the chief justice. While the two matters are not the same in terms of their content, the fact that chief justices alter benches at will continues to be a problem. No reason has been provided as to why Nazeer, the only Muslim judge on the three-judge Ayodhya case bench, or Bhsuhan have not been included in the new five-judge bench. Given the context and controversies of Misra’s tenure, the prerogative of the chief justice to form benches is not a satisfactory answer.
As far as the decision to supersede 30 judges to elevate Khanna goes, Gogoi has persisted with opaqueness in the functioning of the collegium.