Dahlia Lithwick, a reputed reporter of the US Supreme Court for 19 years, recently stated in an article that she has not stepped inside the Court after the confirmation of Justice Kavanaugh.
In an evocative piece written in Slate, she describes how disturbed she felt at the "parody of an FBI investigation" on the sexual harassment allegations against Justice Kavanaugh and the "routinization and normalization" of the continued presence of someone in the Court who managed to "evade the very inquiries and truth-seeking functions that justice is supposed to demand".
"That is the problem with power : it incentivizes forgiveness and forgetting…The problem with power is that there is no speaking truth to it when it holds all the cards", she says.
Acknowledging that there isn't a lot of power in her boycotting of the Court, she adds that "there is a teaspoon of power in refusing to normalize that which was simply wrong, and which continues to be wrong".
Reading this, an observer of the Supreme Court of India would be instantly reminded of the happenings of April-May 2019, when the sexual harassment allegations against Chief Justice of India Ranjan Gogoi were buried using the sheer might of the institution, without following any due process of law. Many would prefer not to talk about it – perhaps out of their desire to not see their much loved and revered Court getting sullied. But the hush up culture, except for the momentary sense of feel good, will not lead to truth and reconciliation.
The first response of the CJI Gogoi to the reports of allegations was to convene an urgent sitting on a Saturday and launch ad hominem attacks on the accuser. Similar to the behavior of Justice Kavanugh during the Senate hearing, where he launched a verbal diatribe on the complainant, the CJI attributed ill-motives to the allegation, stating that it was a plot to 'deactivate the judiciary'. And all this was done violating the most fundamental principles of natural justice that none shall be condemned without being heard and none shall be a judge in his own cause!
Much has been commented about the sheer lack of transparency in the internal inquiry, which culminated in a clean chit to the CJI, for reasons we would never know. There was no sense of urgency even with the probe on the counter-allegation that the case was a plot by fixers to target the CJI and the result of that enquiry also remains a mystery.
Some might say that the innings of CJI Gogoi, who is demitting his office on November 17, should not be hyphenated with this incident. It is not for a moment suggested, even remotely, that he is guilty of the allegations. The concern here is with the process adopted by the Court, which seemed to be more of a cover up exercise than a truth finding mission. In this episode, the Supreme Court behaved as an institution possessed with immense power to emerge unscathed by controlling the narrative, rather than as an institution which stands for truth and justice. As a person who was at the helm of affairs during this grave institutional failure, any discussion on CJI Gogoi must start with this.
Hopes let down
Coming after the tumultuous tenure of CJI Dipak Misra, who led a fractious Court and faced impeachment allegations, Justice Gogoi's assumption of the office of CJI was accompanied with a lot of goodwill and hope. This was primarily due to his participation in the unprecedented judges' press conference in January 2018, where he even went to the extent of suggesting that the allocation of judge Loya case to Justice Arun Mishra-led bench was problematic. Since he was then next in the line of succession to be the CJI, his participation in the press conference – widely perceived to be a protest against the administrative malpractices of SC – elevated him to the status of a conscientious whistleblower.
Later, his speech during the Goenka memorial lecture, enthralled those who stood for constitutional values.
Stressing on the need to have a fiercely independent judiciary and courageous media to preserve democracy, Justice Gogoi said : not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges are needed to act as the democracy's first line of defence.
"As far as idealism is concerned, I would say, it should be pursued like an axiom", he said in conclusion.
Yet, Justice Gogoi's history offered reasons for the skeptics to feel not so swayed with all the fanfare surrounding him.
One was the ugly spat between him and former Justice Markandeya Katju in open court over latter's criticism of the Soumya case verdict. It is true that Justice Katju exceeded the confines of academic criticism of the judgment to make certain uncharitable observations on the judges. Nevertheless, the humiliation of Justice Katju in the court room after he was 'requested' by Justice Gogoi's bench to attend the review hearing of Soumya case, and the serving of contempt notice on him after an unsavory verbal exchange, gave out the impression that he was intolerant to criticism.
The second was the zealous manner in which Justice Gogoi was overseeing the Assam-NRC process. His recent remarks endorsing the final Assam NRC list, which excluded nearly 2 million persons, signifies his personal interest in the matter. The bench headed by Justice Gogoi had in effect taken over the preparation of Assam NRC list, after passing orders regarding the modalities and implementation of it. These orders were mostly based on sealed cover notes and one-sided power point presentations made by the Government, leading one to wonder if the Court was taking the issue relating to citizenship of millions of people too casually.
Justice Gogoi-led bench abruptly closing the probe on the attack of Kanhaiya Kumar by lawyers within Patiala-house court premises was another instance. This was in stark contrast with the pro-active approach which the earlier bench had been showing in the matter. Observing that "we don't want to flog a dead horse back to life", the bench headed by him closed the issue. This was not the Justice Gogoi one saw in the Assam-NRC case. The SC's condonation of "mob justice" in this case perhaps emboldened subsequent acts of violence in the court premises such as the Jammu bar agitation over Kathua case and recent Tis Hazari clash.
Commenting about what to expect from CJI Gogoi ahead of his assumption of office, this author had written last year as follows :
"At times reformist, at times conformist, at times proactive, at times inactive- Justice Gogoi has exhibited contrasting traits in his judicial career so far. Therefore, it will be hard to predict how he will handle the mantle. If his reformist spirit prevails, it will bring systemic changes for over all betterment of justice delivery. If one goes by his statements in the Ram Nath Goenka Lecture that judiciary needs a revolution than a reform, Justice Gogoi seems to be harbouring a revolutionary spirit as well. It is hoped that his future actions as CJI will be guided by this spirit".
Did he herald a judicial revolution, as expected?
Imbalance in equations with executive
Our Constitution envisages a scheme of mutual checks and balances by each pillar of the State. Contrary to this, the Supreme Court under Justice Gogoi's term appeared more like an ally of the political executive.
Signals of this tendency started appearing in the CBI-Alok Verma case. After a fall-out with the Centre, the CBI Director Alok Verma had to face the ignominy of his powers being stripped of by the Government overnight. The case presented a straightforward question : whether divesting Alok Verma of the powers of CBI Director amounted to his removal from the post, which needed sanction of the High Powered Selection Committee as per the Delhi Special Police Establishment Act. The CJI-led bench initially sought for the details of the corruption allegations against Verma in sealed cover. Later, the Court chose to restrict itself to the point of need for sanction from Selection Committee, without touching on the merits of allegations.
When then Court directed his reinstatement on January 10, it was too late, as Verma had less than three weeks left in his term. The reinstatement was made subject to the sanction of Selection Committee. Ultimately, the delay in the case ensured that the powers that wanted Verma out of the Director post succeeded in doing so without facing legal consequences.
The Court's reverential approach towards the Government became more pronounced in the the politically charged Rafale case, where it effectively endorsed the deal making process while declining to order probe into corruption allegations by citing the limited scope of judicial review. Of course, certain grand statements about national security were also thrown in. Based on a "sealed cover note" submitted by the Government, the Court unilaterally accepted government's version on pricing and concluded that Government did not interfere in selection of Reliance as offset partner. (The rafale verdict critically examined in detail in this article)
However, the Rafale judgment left the Court with egg on its face, as it was soon found out that its observations regarding the CAG tabling a report on deal and PAC examining the same were wholly incorrect. The CAG report was tabled in Parliament only in February 2019, nearly two months after the judgment. The Centre swiftly moved a correction application, stating that the Court's findings were based on a grammatical misunderstanding of the submissions in the sealed cover note. This further led to a review petition, which was heard in open court. A day before the last working day of CJI Gogoi, a bench headed by him dismissed the review petitions, affirming the original judgment. The paradox in the main judgment has been carried forward to the review verdict too, as explained more in this critical piece. In a judgment delivered six months after reserving verdict, one would have expected to see more discussion on the contentious issues raised by the petitioners on the basis of documents, instead of a mere affirmation of the "ipse dixit" of the government.
Abdication in Kashmir habeas petitions
The Court's reluctance to question a majoritarian government on the touchstone of constitution became highly evident in the Kashmir petitions. In a petition seeking writ of habeas corpus - termed the great writ of liberty - the primary task of the Court is to ask the Government if there is any detention, and if so, whether the grounds of detention are legal. However, the response of the bench headed by CJI Gogoi to Kashmir habeas petitions was baffling. The bench headed by CJI Gogoi could not muster the temerity to raise these pertinent questions at the Centre. At the same time, as if to maintain the veneer of a constitutional court, the Court 'allowed' the petitioners to travel to Kashmir to visit the detenus and report back to Court.
Likewise, the Court showed no sense of urgency in dealing with the petitions challenging the lockdown of J&K imposed in the form of mobile network shutdown, media curbs and other curfew measures.
The fundamental rule is that if a prima facie case of violation of fundamental rights is shown, the burden of showing that the violation is justifiable as a reasonable restriction shifts to the State. In these cases, the Court pretended to be ignorant of this rule.
The petitioners repeatedly submitted on every day of the posting of the case that the curfew measures were disproportionate affecting the daily life of ordinary residents. But the Court did not venture to make a prima facie examination of the legality, reasonableness and proportionality of the restrictions imposed by the Government. Instead, it passed a vacuous order, making normalcy subject to "national security", giving further room for the continuation of the status quo.
The lockdown of J&K, impacting the lives of over seven million people, has crossed 100 days. Still we have no answer from the Court on the legality and reasonableness of Kashmir clampdown.
Likening the situation to the emergency-era Court, Senior Advocate Dushyant Dave wrote :
"The court's handling of these cases is a harsh reminder of the ADM Jabalpur case. More than a million people have been locked down in one of the biggest clampdowns by the Indian armed forces; and all under the cover of Section 144 of Cr.P.C. Article 21 is about life and liberty, and all that the Supreme Court has done is to defer these crucial matters without taking the government to task"
Senior Advocates Raju Ramachandran and C U Singh expressed similar views, wondering whether the judiciary is sufficiently alert about rights violations, or was in the danger of losing the plot.
The evasive approach of the Supreme Court even got international attention.
"The Supreme Court of India has been slow to deal with petitions concerning habeas corpus, freedom of movement and media restrictions.", commented the UN High Commissioner for Human Rights.
How does one reconcile this situation with the statements of CJI Gogoi evoking idealism and judicial independence during the Goenka memorial lecture?
Unjustifiable delay in hearing case on Electoral Bonds
CJI Gogoi's handling of the electoral bonds case is yet another instance of abdication of judicial powers. The Election Commission of India itself has come on record saying that the scheme has dangerous impact on transparency in political funding. By the time the Justice Gogoi-led bench started hearing of the case last March, most bonds had been purchased for the Lok Sabha polls. On April 12, after several sessions of hearing held during the run up to the 2019 Lok Sabha polls, the three judges bench of the SC comprising CJI Ranjan Gogoi, Justice Deepak Gupta and Sanjiv Khanna directed the political parties to submit the details of donations received to the ECI in sealed cover by May 30. Despite observing that the case has "weighty issues" having "tremendous bearing on the sanctity of electoral process in the country", the matter has not witnessed any further action after April 12. The bonds were used in the subsequently held elections in Maharastra and Haryana, and will be notified for use in the upcoming Jharkhand elections as well, even as the Court continues to sit over the matter.
Increased mystery over collegium decisions
The cloak of secrecy over collegium got thicker during the term of CJI Gogoi.
There were a spate of controversial decisions, steeped in mystery, starting with the transfer of Justice A Kureshi from Gujarat HC to Bombay HC. That Justice Kureshi had passed judicial orders against the present establishment gave rise of speculations that the decision was caused by political pressure.
Then followed the unprecedented annulment of a collegium decision regarding the elevation of Justices Rajendra Menon and Pradeep Nandrajog to SC. This decision taken on December 12 was later changed, and Justices Sanjiv Khanna and Dinesh Maheswari were proposed instead. Again, the reasons for this change remain unknown.
Justice M B Lokur, who was part of the December 12 collegium decision, expressed surprise and disappointment at this unexplained change which happened after his retirement on December 30. This decision caused consternation even within the SC. Justice S K Kaul, a sitting SC judge, wrote to CJI questioning the decision to elevate Justice Khanna ignoring seniority.
The Collegium decision to transfer former Madras HC CJ Justice V K Tahilramani to Meghalaya HC - for reasons undisclosed - caused embarrassment to it after she resigned in protest over the decision. The situation forced the Collegium to issue a strangely worded press release stating that the decision was based on cogent reasons, which again were not disclosed.
This was followed by the modification of the proposal to elevate Justice Kureshi as CJ of Madhya Pradesh HC. After the Centre sat over this proposal for nearly four months, the Collegium made a modified proposal to elevate him as CJ of Tripura HC instead, leaving out the big question 'Why'.
The practice of publishing collegium resolutions, started in October 2017 to promote transparency, is also discontinued now, restoring full secrecy to judicial appointments, as the recent decisions were announced through 'Statements' which contained no reasons.
Coming in the backdrop, the path-breaking decision delivered by the CB headed by CJI Gogoi to hold the office of CJI a public authority under RTI Act seemed ironic.
Some may depict Justice Gogoi as an institutional reformer by pointing out that the Supreme Court got its highest number of judges - 34 - during his term. But when the core institutional issues of transparency and accountability are left unaddressed, mere increase in the posts of judges will not contribute much.
It needs to be also mentioned that CJI Gogoi failed to effectively address the issue of selective delay shown by Centre even with respect to reiterations made by Collegium. Last February, he absolved Centre of the blame in delay of judicial appointments, and said that the delay lay with the Collegium under him.
While he headed the bench which passed a series of proactive orders to ensure speedy filling up of vacancies in subordinate courts, the mounting vacancies at High Courts were left unnoticed. A recent order passed by a two judge bench of the Supreme Court took note of this fact, observing that nearly 40% of sanctioned posts in HCs are lying vacant.
Steering the decline of the Court
During the term of CJI Gogoi, we saw the Supreme Court looking the other way when citizens complained of violation of basic rights.
We saw the executive getting away with its actions unquestioned on several instances.
The SC's acts (and omissions) seemed in sync with the agenda of the State. This left the scheme of separation of powers and mutual checks and balances severely disturbed.
The concept of judicial independence is said to include 'functional independence of the Court', which is the ability of the institution to take decisions free of pressure from the State (Ref NJAC decision). One cannot say that the Court was truly independent in this sense during this period.
Nevertheless, the Ayodhya verdict allowing the construction of temple in the disputed land where Babri Masjid once stood has brought a lot of public cheers for Justice Gogoi. History may even hail him as the man who made Ram Mandir at Ayodhya possible. However, the acts and omissions of Justice Gogoi, which steered the decline of SC as an institution of justice, cannot go unsaid.