It was a crowd thronging for democracy in the true sense, eagerly waiting to hear what Justice Ranjan Gogoi -- the second senior most judge and a man in line for the post of next Chief Justice of India -- had to say about his vision of justice. The occasion was third Ramnath Goenka Lecture in New Delhi, organised by the Indian Express on 12th July 2018.
Justice Gogoi was basking in the glory of the historic press conference of 12th January 2018, which he had attended along with the three senior most judges of the supreme court. By placing himself in the line of fire, he had attained the status of an icon who fought for judicial independence. There were enough indications to suggest that his act of going public may even cost him the position of 'Chief Justiceship of India'. Justice Gogoi had then the envying stature of a " martyr to be", who had seemingly made a sacrifice for the sake of judicial democracy.
During the lecture, his most striking quote was from George Orwell's '1984', recollecting which he said , "Freedom is the freedom to say that two plus two makes four. If that is granted, all else follows."
The judge enthralled the audience. "The freedom to say that two plus two makes four. And that is how I remember him as. Someone who could call a spade a spade; someone who could speak truth to power, even if it came at a cost. To be ready to break, but not bend could be called obstinacy by some, and determination by others. Is it a matter of perspective? I do not know. And, I cannot say for others but as far as I am concerned, I only feel that we need to ask ourselves some questions: Where is the Goenka in us, his ideals, his values? Is that extraordinary phenomenon losing its relevance today, after all these years?"
It was so refreshing to hear such reassurances from the prospective Chief Justice. Rather than a lecture, it seemed as a solo press conference wherein the future CJI was unfolding his vision of justice.
Mentioning a series of judgments on free speech and freedom of press, he said, " If you would recall, these were perhaps some of the earliest pronouncements protecting an Independent Indian's Speech and Expression and were delivered in the light of the rights of the Press, which verdicts themselves had endorsed that a democracy was 'a marketplace of ideas' where the people had a right to know; that prior restraints were anathematic to a democracy and that the freedom of speech and of the press is the Ark of the Covenant of Democracy. Shreya Singhal took this legacy ahead as it improved upon the jurisprudence on the independence of the Press to attain and promote the Constitutional precept of plurality of thought, diversity of opinion and the ethos of democracy in the tech-age and in the context of online speech. The Vision of Justice was indeed attained in the courtroom. Not once, but multiple times. But has it translated into reality? Has the success of these sterling verdicts reached the ground? I will let the facts speak for themselves. On the ground, it is a descent into chaos. And it is worrisome on all counts when you sue the messenger or when you shoot the messenger, or when the messenger itself declines to deliver the message because of the fear psychosis."
Then came the phrase which was oft-quoted later : "not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges"- the democracy's first line of defence. The speech was music to the ears of libertarian India.
I saw some of the proponents of free speech and liberty looking at each other and raising their brows. The rebellious mood that prevailed in the historic press conference was all present on and off the dais.
The judges' press conference was historic in all senses, a lot of earth shattering revelations were made. The judges had handed over to media a letter written by them to the then CJI Dipak Misra, which, among other things, stated that "cases having far-reaching consequences for the nation and judiciary were selectively assigned to benches of preference without any rational basis."
Justice Ranjan Gogoi, on being asked if the letter was about CBI Judge BH Loya's alleged mysterious death case, said: "yes." .
So, when Justice Gogoi took charge as CJI on October 3, high hopes were in place.But three months into the tenure, there have been a lot of disappointments, may be quarter is too less a time.
Since, Justice Gogoi himself has advocated to 'call a spade a spade' and find out Goenka in each one of us, and has urged us to "speak truth to power", I dare to do this article. Hope this won't attract contempt or wrath.
Master of Roster
The main issues raised in the press conference were these – arbitrary allocation of cases using the Master of Roster power of the CJI, and finalisation of Memorandum of Procedure for judicial appointments.
These issues still persist, even a year after the presser.The only reform made with respect to the power of CJI to constitute benches was the introduction of a subject wise roster system, which was done during the tenure of former CJI Dipak Misra in the first week of February 2018.
In April, the bench headed by the then CJI Misra dismissed a PIL by lawyer Asok Pande, which sought for regulations on the power of "master of roster". It was declared in the judgment that allocation of cases and constitution of benches was an exclusive prerogative of the CJI. Following this judgment, another bench dismissed a petition filed by Shanthi Bhushan, which sought for declaration that 'master of roster' power should be exercised not by the CJI alone but by a collegium of senior judges. The system of subject wise roster system was continued by the new CJI Ranjan Gogoi after his assumption of charge.
So, no significant reform has taken place with respect to the "master of roster" powers of CJI. This week, CJI Gogoi surprised many by invoking this power in the Ayodhya-Babri case, by constituting a five judges bench to hear the matter.
These incidents highlight that the issues regarding the unbridled powers of CJI to constitute benches and assign cases, which were raised in the press conference, are still relevant.
The Memorandum of Procedure (MOP) for appointment of judges
The Memorandum of Procedure for appointment of judges is still a faraway reality. The lack of MoP means there is no set time limit for the Centre to act on the Collegium recommendations.
After CJI Gogoi took charge, two instances of Centre splitting up the collegium recommendations for High Court judges have occurred. Though there were unconfirmed reports that the CJI had conveyed his unhappiness with the Centre over splitting up recommendations. Anyhow, no change with respect to the held up proposals has taken place.
Though some recommendations of collegium for supreme court and high courts are approved by the central government in a lightning speed, there is no consistent practise. The swiftness on the part of central government, probably could be because many recomendees had openly shared the same ideology of the central government.
Collegium decisions still surrounded by mystery
Though there is publication of collegium resolutions, the decisions lack transparency. The latest collegium decision taken on January 10 regarding elevation of Justices Dinesh Maheshwari and Sanjiv Khanna is quite startling. This decision is reported to have taken in supersession of the earlier decision of the collegium on December 12. It is said that beauty lies in the eyes of beholder, similarly, we will have to say the 'integrity and merit' of high court judges lie in the eyes of collegium judges. Except the fact that the collegium composition changed with the retirement of Justice M B Lokur and consequent induction of Justice Arun Mishra, nothing else changed between December 12 and January 10. The 'merit and integrity' of high court judges seem to fluctuate as per the composition of collegium.
Earlier, there were reports that on December 12, the SC collegium had recommended the elevation of Justice Rajendra Menon, CJ of Delhi HC, and Justice Pradeep Nandrajog. However, the minutes of the resolutions were not uploaded on the SC website.
Justice Dinesh Maheshwari, whose elevation has been recommended now, had become subject of criticism last year, when the judge initiated an administrative probe into the allegations against a subordinate judge in Karnataka, P Krishna Bhat. The probe was based on an communication from the central government. An earlier probe by the HC had cleared Judge Bhat of allegations.This action of Justice Maheshwari was heavily criticised by Justice Chelameswar. There is no evidence that Justice Chelameshwar's valid concerns were addressed.
Questions are now raised regarding the proposal of Justice Sanjiv Khanna, a relatively junior judge, who has been recommended overlooking senior judges of High Courts based on comparative merit. There are three meritorious judges in Delhi HC itself who are senior to Justice Khanna- Justices Gita Mittal, Pradeep Nandrajog and Ravindra Bhat. Justice Khanna is 33 in the All India Seniority list. Though seniority by itself is not the relevant consideration for elevation as judges, there needs to be an explanation for overlooking seniority and merit of other candidates.
In the meantime, the former Delhi High Court judge and Senior Advocate Kailash Gambhir has written to the President of India, questioning the Supreme Court Collegium's recommendation to elevate Justices Sanjiv Khanna and Dinesh Maheshwari to the Supreme Court. The letter claims that the decision has sent shockwaves across the entire legal and judicial fraternity, and calls it "appalling and outrageous" and an "earth shattering decision" by the Collegium to supersede as many as 32 judges, including several chief justices. The decision, he says, casts aspersions on the intellect, merit and integrity of all those who have been superseded.
So, what is the basis of these decisions? There is no clarity. Whatever may be the intentions, the bottom-line is that the collegium decision making is still a mystery.
Transfer of Justice A Kureshi from Gujarat to Bombay
The decision of the collegium under CJI Gogoi to recommend transfer of Justice A Kureshi, the second senior judge of the Gujarat High Court to Bombay making him there as fifth in the seniority has created a huge controversy. The Gujarat High Court bar protested against the move. They even passed a resolution calling for an indefinite strike.The strike call was later withdrawn after CJI Gogoi assured the representatives of Gujarat HC Advocates Association that the needful will be done. However, no change of the decision has taken place yet.
Sealed cover procedure
CJI Gogoi's reliance on "sealed cover" procedure in the cases of CBI-Alok Verma, Rafale is in stark contradiction with his public statements on freedom of speech and transparency.The sealed cover procedure adopted in Rafele has landed the SC in a soup, when the Government itself filed an application seeking correction of "factual errors" in judgment. Relying on the sealed cover reply of the Government, the SC recorded in the judgment that the pricing details of the deal were handed over to the CAG and examined by the PAC.
Similar avoidable controversy has happened in the Alok Verma case too. The CJI had insisted on submission of the CVC report and Verma's reply in sealed covers.After the removal of Verma as CBI Director by the High Powered Committee based on the CVC report, huge speculation is going on regarding its contents. Justice Patnaik, who was authorised to monitor the probe, had given his findings too, which are reportedly in variance with the CVC report. Justice Patnaik has said that there was no evidence of corruption against Verma. The reason cited for such decisions are for institutional integrity and to prevent greater damage, but it in effect it has only created speculations.
Anyhow, since the contents of the reports are in sealed cover, the public is kept at dark.
Freedom of press and court procedure
It happened on November 20 during the Alok Verma's case hearing . On that day the CJI was visibly furious with the fact that an online news portal "The Wire" published the contents of Verma's reply to CVC. The CJI was under the wrong impression that the online portal had published the contents of the reply submitted by Verma in Supreme Court in sealed cover.
"None of you deserves a hearing", the CJI said, posting the case after nine days.
Though it was clarified by Senior Counsel F S Nariman that the media had published the responses given by Verma to a CVC questionnaire and not the sealed cover reply filed in SC, it could not persuade the CJI to hear the matter on that day. The matter was adjourned.
A quick decision making process is apparent in the functioning of CJI Gogoi, which even invited criticism of Attorney General in court. A quick dismissal order by the CJI perturbed the Attorney General K K Venugopal. "Clients come from far away, from thousands of miles away. They stand at the back and look at this court....as their counsel stands and you say, 'dismissed!'....This is not the way....Your Lordships have to hear completely! Please see the other courts....", the AG said. No doubt, the criticism by AG was well taken by CJI and gave AG a full hearing and even varied the order.
Many of the issues are to be resolved by a constructive broad-based dialogue with various stake holders. Hopes are high so high, hence the concern.
Views are personal only
Image Courtesy: Indian Express