March 29, 2020

Laying to rest all speculations and following convention, the outgoing CJI Justice Dipak Misra has written to the government recommending the name of the senior-most judge of the Supreme Court, Justice Ranjan Gogoi, as the next chief justice of India. Commentators had been speculating that convention might be thrown to the winds as Justice Misra was supposedly peeved at Justice Gogoi for raising the banner of revolt by holding a press conference with three other judges to criticize the way of working of the present CJI. But when people occupy such high positions, they obviously do not let personal or professional tiffs come in way of conventions and fair play. Justice Misra has done what needed to be done and what all other chief justices had been doing before him.

There have been two instances – both, not surprisingly, when the late Indira Gandhi was prime minister– when the government did not appoint the senior-most judge as the chief justice. First, in August 1973, Justice A N Roy was appointed the chief justice superseding three judges senior to him. All three – Justice J M Shelat, Justice K S Hegde and Justice A N Grover – resigned in protest. All three judges had drawn Indira Gandhi’s ire by passing a majority order in the Keshavananda Bharati vs State of Kerala that went against what she wanted. Justice Ray had written a dissenting order more in line with the official thinking. He was rewarded for it.

Then again in 1977, Justice M H Beg superseded Justice H R Khanna as chief justice. Justice Khanna’s fault was that he was too independent, refusing to toe any particular line. Indira Gandhi was known to clip the wings of people who were independent thinkers or who swore by the rule of law. For it was her habit to bend the law according to her preference with pliant judiciary. Strategic appointments were a key to this. Those controversial appointments put pliant people in place and brought others in line too. They also showed who the boss was, something that Indira Gandhi was always eager to show. If this government follows Indira Gandhi’s line and does not appoint Justice Gogoi as chief justice, it would be driving another wedge in the relations between the executive and the judiciary. Apart from being the senior-most judge after the CJI, Justice Gogoi is an outstanding deliverer of justice and there can be no question marks on his competence. Hence, the government should not go against convention and should clear his appointment.