The Chief Justice of India, Dipak Misra, due to retire in October, has named the senior-most judge of the Supreme Court after him as his successor. In normal circumstances, that statement, the event it describes, would be unremarkable. After all, the established convention and procedure is that the sitting CJI recommends the most senior SC judge fit to hold office, and the recommendation is processed and forwarded to the President who issues a warrant of appointment. That convention has held, barring two exceptions, both during the prime ministership of Indira Gandhi, when two CJIs were elevated out of turn bypassing the senior-most judges, who then resigned. But these are not normal circumstances. Ever since the crisis of the judiciary — the tensions within it and between the judiciary and the executive — were publicly outed in January this year, and because Justice Ranjan Gogoi was one of the four senior judges who went public with a press conference, speculation has gained ground that he could be overlooked when the time came. The turbulence triggered by that January press conference in and around a traditionally sedate institution has still not abated. Against that backdrop, and in the context of the turbulence, therefore, CJI Misra’s decision to abide by the established convention stands out — and it reassures.
Justice Gogoi’s elevation is still to be finalised, but the signal from CJI Misra, the first CJI to have an impeachment motion moved against him, is that the passing of the baton in the highest court of the land will not be affected by the turmoil of the day. The transition in the judiciary will adhere to institutional norms, the written and, more importantly, those that may be unwritten but have acquired power from custom and convention that is so vital in shoring up the distribution of power, and the checks and balances, in a constitutional system. Going ahead, however, the new CJI will have his hands full. He must grapple not just with important cases, but also with bristling institutional irresolutions. He must address the important questions thrown up this year, beginning with those that have to do with the CJI’s own role in the allocation of cases as “master of the roster”. Then, he must find a way of assuaging the fears stoked by an executive armed with a decisive mandate that the independence of the judiciary, the balance of powers between the executive and the judiciary, is being disturbed, especially through executive pressure and interference in the process of higher judicial appointments.
These are difficult times for the court. In times such as these, the court must play its traditional role, of course, of speaking Constitution to power, upholding it in letter and spirit. But along with constancy, the court is also called upon to show innovation and flexibility in dealing with new challenges. CJI Misra’s successor will have an important tenure, and a consequential one for the nation.