The controversy-ridden tenure of Justice Ranjan Gogoi as the 46th Chief Justice of India, which was slowly fading away from the public memory, is now back in focus with Gogoi(now a nominated member of the Rajya Sabha) releasing an autobiography.
As its curious title "Justice For The Judge" suggests, Gogoi's 250-page memoir is essentially an attempt to salvage his legacy and reputation from public scandals and a lament about what he perceives as the unfair attacks on him by a "group", which he does not name or specify.
He speaks about the trend of this "group" preparing a "report card" at the end of the tenure of a judge.
"They prepare a report card at the end of the tenure of a judge. The message is clear: a good report card will come at a cost; if you are not ready to conform to a particular way of thinking and act accordingly, you will earn the dubious reputation of having compromised and surrendered the independence of the judiciary", the book says. He adds that his successor CJI SA Bobde also received "report cards", which were mostly negative, after his retirement. [Disclosure: This author has written articles critiquing the terms of CJI Gogoi and Bobde]
Gogoi adds that this "group" is gaining strength day by day and terms it a "real danger" to the institution. Gogoi expresses his apprehension as follows :
"At times, I am haunted by the thought that if a perception develops in the next generation of judges that they must tailor their work or decisions with the aim of avoiding a negative report card at the end of their tenures (report cards have become the order of the day), what would that portend for the future of the judiciary as an institution?"
Asking "whether judges have to perpetually remain silent and stoic, even when life shoots bullets at them", Gogoi sets out to defend the various allegations in the public domain against him.
While this author does not wish to comment much about Gogoi's responses to criticisms over the handling of the sexual harassment allegations against him and his denial that the Rajya Sabha nomination was a "quid pro quo" for giving decisions favourable to the government – a lot has been commented on these aspects by various others – his explanations about some of the controversial judgments during his term as the CJI require some scrutiny.
Of course, a judge cannot use external public statements to defend his judgment and his autobiography cannot supplement or enhance the judgments' record. Yet, Gogoi gives a narration about the controversial judgments during his tenure, in what appeared to be an attempt of defence. How far he has succeeded? Let us see.
On December 14, 2018, a bench comprising CJI Gogoi, Justice SK Kaul and Justice KM Joseph dismissed a bunch of PILs which sought to probe into the allegations of corruption in the defence deal to procure 36 Rafale aircrafts from French company Dassault. In the memoir, Gogoi laments that this verdict was "widely and violently attacked".
This article is not being burdened with the points of criticism against the Rafale verdict. They are elaborately discussed in the articles published by this author on December 15, 2018 and November 16, 2019, about the main judgment and the review order respectively, which the interested readers may refer [available here and here]. The crux of the criticism was about the contradictory approach taken by the Supreme Court. Though the Court declined jurisdiction citing the narrow scope of Article 32 powers over national security issues, it in effect gave a conclusive ruling on the contentious points and ended up endorsing the deal, even while aborting a full-fledged investigation.
About how the case was decided, Gogoi says in his memoir :
"Judicial decisions are rendered on the basis of materials brought before the Court and not on perceptions or expectations of any person or group of persons. That is how Rafale was decided".
In this context, it will be interesting to note that the main judgment acknowledged that there were certain procedural irregularities in the deal process, but trivialized them as "minor deviations". The petitioners' case was that irregularities required a deeper probe in the context of corruption allegations. The plea for the probe was however converted into a trial on the merits of the deal, and on the basis of limited materials brought before the Court, it endorsed the deal, while exercising a narrow jurisdiction under Article 32. That is how Rafale was decided.
The main judgment also made a blatant mistake by recording that the CAG report of the deal have been examined by the Public Accounts Committee, though the CAG report was yet to be placed before the Parliament as on the date of the judgment. Also, the judgment made a wrong reference to the company owned by Mukesh Ambani(whereas the case was related to Anil Ambani's company). In review, the Court directed these mistaken references to be omitted from the judgment saying the ultimate conclusions were not based on them.
It is also interesting to note that Justice KM Joseph, in his separate judgment in the review, struck a somewhat discordant note, by observing that the petitioners "have otherwise made out a case"; but the Court cannot order the probe due to the want of sanction under Section 17A of the Prevention of Corruption Act. Justice Joseph added that the verdict will not prevent the CBI from taking action on the complaint in accordance with the law.
"However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Exhibit P1-complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17A of the Prevention of Corruption Act", Justice Joseph said in the review.
While Gogoi asserts in his memoir that the judgment was unanimous, he skips references to these observations made by Justice Joseph.
Alok Verma case
The overnight orders passed to divest the powers of CBI Director Alok Verma had created a controversy. The bench led by the CJI Gogoi ruled that this was illegal as approval of the High Powered Committee was necessary to remove Verma from the Director's post.
The problem with respect to the judgment was its delay. It took over three months for the Supreme Court to decide on the point regarding HPC approval, which is a statutory requirement under the CVC Act. When the judgment was pronounced on January 8, 2019, almost a month after it was reserved, Verma had only a few days left in service.
Gogoi's memoir does not discuss whether a faster adjudication in the case could have yielded a better outcome.
Gogoi's book has his responses to the criticisms that the Supreme Court delayed the adjudication of cases related to Jammu Kashmir, filed in the wake of the abrogation of its special status. He says that on the very first day of the hearing itself, the petitions challenging the Presidential Orders issued under Article 370 were referred to the Constitution Bench, noting that issues of serious constitutional issues are raised. He also mentions that cases related to internet blockade and detention of juveniles were assigned to a bench led by Justice NV Ramana, who was then the next available senior judge.
But most of the criticism directed at Gogoi was related to the handling of the habeas corpus petitions, which were listed before his bench. In those petitions, which alleged illegal detention of political leaders and civilians in Kashmir, the bench led by CJI Gogoi passed orders which inversed the concept of habeas corpus. Instead of seeking justifications from the State regarding the detention, the bench 'permitted' the petitioners to go to Kashmir and meet the detenus, under strict conditions.
Several senior lawyers and constitutional law scholars had commented about the approach of the Court in Kashmir habeas cases( refer here, here, here). The critics pointed out that when a writ of habeas corpus is sought, it is imperative that the Court asks the State if there is detention as alleged, and if yes, whether the detention is made on legally justifiable grounds.
In the Kashmir case, the Court did not ask the government these pertinent queries and chose to accept the statements of the government at face value without questions. There was widespread criticism that the Court was abdicating its constitutional role as the protector of personal liberties with its casual approach in Kashmir habeas cases.
The justification given in Gogoi's memoir is: "Slight deviations from the set procedure in larger public interest and in the pursuit of substantial justice would always be permissible and in fact expected, especially from the top court of the country". This is exactly how the emergency era Supreme Court also spoke while evading action in habeas corpus matters.
The reference order passed by the Sabarimala review bench led by Gogoi was quite extraordinary. The order had come under strong academic criticism from several quarters as the reference was made without making a finding on any apparent error in the main judgment(refer few such critical articles here and here). Also, in an unprecedented manner, the reference order indicated certain possible questions which may arise in the matter, although they were not directly linked with the Sabarimala case. The Sabarimala reference was thus expanded by including issues that may arise in the yet to be decided cases relating to the rights of Muslim and Parsi women. Several lawyers and scholars commented that neither the procedure under Article 137 of the Constitution nor the precedents support this approach.
In the book, Gogoi says that he was of the view that the issue related to women entry to places of worship of other religions may also get pre-decided by the Sabarimala verdict. Therefore, he felt that the issue required re-examination along with other cases. He also makes a revelation that Justice AM Khanwilkar, who had supported CJI Dipak Misra in the majority judgment in Sabarimala case, expressed a view in a meeting held with the members of the bench that he was in favour of rehearing of the larger issues arising in the case without disturbing the correctness of the majority judgment. It was Justice Khanwilkar's switch that was determinative in the Sabarimala review.
The mind-boggling question here is can the personal feelings or the opinions of the judges be grounds to make a reference in a review over a judgment. It is astounding that a Constitutional Bench judgment, delivered after elaborate hearings, could be reviewed on just personal feelings. Also, would it not have been appropriate for the judges to reveal such a personal feeling to the parties during the review hearings, so that a fair opportunity was available to the contesting parties to confront this issue in arguments?
Gogoi does not offer any answer to the academic criticism that this approach taken by the Sabarimala review bench was unknown to law and was contrary to the procedure under Article 137 of the Constitution, which deals with review jurisdiction. Instead, he makes an insinuating comment -"But reopening of what was considered a concluded issue and that too of vital importance for Hindu faith and society was not taken too kindly by a lot of people".
It is interesting to note that while Gogoi religiously quotes the rule book to defend the confidential in-house enquiry in the sexual harassment case against him, he finds no irregularity in the Sabarimala reference procedure.
Gogoi also makes a claim in the book "there was nothing extraordinary about the CBI director, Rafale or Sabarimala cases". But the record shows that extraordinary courses were adopted in these cases and they were not "routine adjudications", as projected by him.
It is clear that Gogoi, being a native of Assam, has strong feelings about NRC. He has made public statements expressing the same too.
The bench led by Justice Gogoi drove the NRC verification process in Assam. The final NRC list published in August 2019 excluded nearly 2 million persons. There are many reports documenting how this process of proving citizenship based on decades-old documents tracing back to 1971 caused immense hardships to people, especially the marginalized. His memoir trivializes the concerns of lakhs of people regarding citizenship by saying:
"The exclusion of a name from the NRC is not the end of the road. Such exclusion is subject to a well laid down judicial process i.e. challenge before the Foreigners' Tribunal".
Considering how the Gauhati High Court has been pulling up the Foreigners Tribunals in many cases for the casual approach in declaring several persons as not Indian citizens – in some cases even without issuing notices to the parties- Gogoi's statement might not offer consolation to those excluded from NRC.
In 2019, while hearing a petition seeking humane conditions in detention centres in Assam, Gogoi, who was leading the bench, had pulled up the State Government for not deporting the detenus. Later, the petitioner in the case, Harsh Mander, requested for recusal of Gogoi from the case, citing the likelihood of bias, and saying that his petition was being converted by the bench to order the deportation of the detenus. Gogoi not only refused to recuse but also removed Harsh Mande as the petitioner and substituted Supreme Court Legal Services Committee as the petitioner.
While Gogoi repeatedly asserts in his memoir that NRC is a legal requirement, he refuses to answer the questions posed by critics why his bench expedited the process even when the constitutionality of Section 6A of the Citizenship Act – the legal basis for NRC – is the subject matter of a pending petition. As the CJI, Gogoi did not constitute a bench to decide this constitutional issue first. On August 13, 2019, his bench recorded that the final NRC list will be subject to the result of the Constitution Bench judgment on the validity of Section 6A.
Be that as it may, in an anti-climax of sorts, the final NRC list has no takers, even among the ruling party, and the gargantuan efforts led by Gogoi are turning out to be an exercise in futility. He does not hide his disappointment over this fact as well.
The memoir has a chapter dedicated to the background of Ayodhya case hearing and the verdict. His revelations in the book about the judges 'celebrating' the judgment with a luxurious dinner and a bottle of wine at Taj Mansingh hotel have already attracted a lot of public criticism. In an interview with NDTV's Sreenivasan Jain, Gogoi denied that it was a "celebration" and claimed that the judges were merely taking a break. Well, this was a poor defence, given the fact that his autobiography captions the picture of the judges' dine-out as "Celebrating Ayodhya Verdict". This 'celebratory' dinner leaves a poor taste on the expectation that judges decide cases dispassionately.
In the same interview, Jain asked Gogoi if the Ayodhya verdict was wrong as it amounted to rewarding the destruction of the mosque, which the Court termed as an "egregious violation of rule of law".
Gogoi refused to answer the question by saying he can't speak anything more than what is written in the judgment. In the book as well, Gogoi maintains a steady silence on the legal criticisms about the Ayodhya verdict.
While Gogoi's memoir mentions many of his decisions, he omits to mention one case in which he avoided decision – the legality of electoral bonds, a crucial matter linked with the sanctity of our election process.
Although his bench passed a few directions ahead of the 2019 Lok Sabha polls to political parties to furnish the details of the electoral bond donations to the Election Commission of India, there was no follow up hearing. In fact, the case was never listed after that during his tenure. It may be noted that the Election Commission had then filed an affidavit expressing serious reservations about the anonymous electoral bonds schemes by describing it as a "retrograde step as far as transparency of donations is concerned".
In an interview with Times Now after his retirement, when asked about the criticism over refusal to decide electoral bonds issue, Gogoi gave an evasive reply saying "Electoral bond issue, I don't remember, frankly".
Gogoi says in his memoir that he was being targeted by the "group" in the name of judicial independence. If one analyses the extraordinary courses adopted in the contentious issues described above, it can be seen that those actions and inactions did favour and further the interests of the Executive. Whether it was a coincidence or not, one can't say. It is in this backdrop that questions are raised about the erosion of judicial independence.
Gogoi himself admits in his book that the decision on the transfer of Justice Akil Kureshi was taken to "avoid a confrontation between the two constitutional bodies", following an objection taken by the Government. Can an objective onlooker be faulted for construing this an instance of surrender of judicial independence?
It is a matter of regret that the former Chief Justice of India is cutting a sorry figure in the public with untenable explanations about his conduct. Gogoi admitted that it was wrong on his part to head the bench during the infamous Saturday hearing in the sexual harassment case. Yet, he attempts to justify it by saying that no effective order was passed on that day. When the order advises the media to exercise caution while publishing "wild and baseless allegations", that itself prejudices the further proceedings. And, nothing justifies the absence of Gogoi's name in the signed order copy of that day, although he was heading the bench. This comes across as obfuscation of judicial records.
Gogoi's loud statements about "larger conspiracy" behind sexual harassment charges ended up as a damp squib with the Supreme Court closing the probe into the matter and not bothering to act on Justice Patnaik's inquiry report. The lady who raised the allegations was also reinstated in service, which Gogoi portrays in his book as an act of "compassion". But the discerning members of the public can see through this farce.
At times, it feels that Gogoi is attempting to redeem his reputation at the cost of the institution which he served.
Also, Gogoi is embarrassing himself with his statements about the Rajya Sabha nomination. His poor attendance record of less than 10% in the Rajya Sabha belies his claims that he accepted the nomination to do public service and to present the views of the judiciary before the Parliament. His defiant statement in an interview to the NDTV that he will go to Rajya Sabha when he feels like going is causing an insult to the Parliament as well.
Criticism not personal attack
Meaningful engagement with legitimate criticism becomes impossible when all critics are labelled in a broad brush as misguided and motivated. Gogoi clubs all his critics under the label of a nameless "group". He alleges that this "group" is attacking him as the judgments were not "tailored to suit them". At some places, he describes the group as "self-proclaimed champions of human rights and free speech or such other public causes". At another place, he uses the expression "critics, ensconced in comfortable spaces in Lutyens' Delhi….". It is amusing to note that such expressions sound similar to labels like "Khan Market Gang" "Lutyens Club" etc, used in shallow social media rants.
Throughout the book, Gogoi exhibits a pronounced hostility and intolerance towards criticism against him by terming them as 'personal attacks', 'misinformed', motivated', 'malignant'.
Whatever be Gogoi's protestations, the fact of the matter is that there are valid and strong grounds for criticism against several of his decisions and (in)actions. The office of the CJI and the Supreme Court of India are subject to public scrutiny. And at least some of these criticisms are "motivated" by a desire for a robust and independent judiciary.
Ranjan Gogoi is entitled to feel perturbed by the critical comments against him; he is also entitled to search for inner peace by giving a vent to his wounded feelings. But he is not entitled to think that his conduct at the public office should be shielded from public scrutiny.