- NL Sena
Chief Justice Gogoi raised hopes of doing better than those before him, but he failed to deliver.
The rivalry between Athenian statesmen and fierce opponents, Demosthenes and Aeschines, is well-known for resulting in two famous judicial orations: “On the False Embassy” and “On the Crown”. It was in the latter that Demosthenes described Aeschines (who was an actor before taking up politics) as “an actor in tragedy”.
He said: “I should conclude, Aeschines, that you undertook this cause to exhibit your eloquence and strength of lungs, not to obtain satisfaction for any wrong. But it is not the language of an orator, Aeschines, that has any value, nor yet the tone of his voice, but his adopting the same views with the people…”
The historical and unprecedented press conference by four Supreme Court judges on January 12, 2018, saw the hopes of a clean and transparent system transform to “super saiyan”. It had (then) Justice Ranjan Gogoi sitting right to Justice J Chelameswar, who led the conference, along with Justices Madan B Lokur and Kurian Joseph. At the time, Justice Gogoi was next in line to be the Chief Justice of India. His presence in the conference meant his support to the ideas it was putting forward.
The conference had its genesis in the controversial allocation of cases to a selected bench and the non-finalisation of the memorandum for appointment of judges. Though these were two specific contentions of the controversy, there were bigger apprehensions of interference by the political executive in the functioning of the apex court.
The conference served as an antithesis to the apprehensions of a political nexus operating from Tilak Marg to Central Secretariat. The other three judges emerged as “philosophers of the French revolution” with the “suffering citizens” seeing a young Napoleon in Justice Gogoi who was to continue this civil change. Little did we know he would, like the real Napoleon, betray the revolution.
Like Aeschines of Demosthenes, he spoke but did not act upon.
CJI Ranjan Gogoi attempted to act as a vigilant defender against the encroachment of the politico-executive. But at the same time, he compromised on the spirit of the Supreme Court. Justice Gogoi’s tenure as the CJI saw a chain of blowback on the protection of fundamental rights guaranteed under the Constitution.
Independency of the chair
The day after Gogoi took charge as the Chief Justice, an urgent petition was moved, seeking intervention against the government’s decision to deport seven Rohingya Muslims. But the new Chief Justice dismissed the matter and held that Rohingya refugees have been recognized as citizens by the Myanmar government and so, Myanmar was ready to accept them. The reasoning was a clear departure from the Supreme Court’s previous jurisprudence recognising the government’s constitutional obligation to protect refugees from refoulement to the country of origin where they might face persecution. The reasoning was in complete disregard to the predominant fact that Rohingyas face extreme violence and genocide in Myanmar.
Then, the CJI played a crucial role in constructing the judicial architect of implementing the National Register of Citizens in Assam, which pushed 19 lakh people into the position of statelessness and constitutional disfranchisement. While adjudicating on a PIL filed by Harsh Mander seeking a direction against the inhumane conditions of detention centres in Assam, the CJI responded that he would not tolerate any attempt to “browbeat” the institution and decried the frequent charges of “bias” against judges.
He further substituted Harsh Mander in his own petition with the Legal Service Authority as the new petitioner. The Chief Justice was quoted as observing: “There are 900 foreigners in detention centres and more than one lakh twelve thousand who have mingled with the locals. They are on the electoral list and they are voting. Is this how your government is functioning?…You are committed to bringing a five-star detention centre later? Do that! The existing centres are housing 900 people as against the so many who have been declared foreigners? Why are there not thousands? And If there were to be so many, (in view of the sub-human conditions that infest the centres even now), where will you be?” [emphasis added]
These and a few more instances in his tenure marked a period when the apex court abandoned its legacy of civil rights in favour of state narrative.
Another problematic stance by the CJI was judicial evasion from properly and promptly reviewing State actions alleged to be in violation of fundamental rights. This is apparent from the handling of issues regarding the human rights violations in Kashmir after the abrogation of Article 370 on August 5, 2019. The Indian government placed an absolute embargo on communication and Internet services and there was an arbitrary detention of individuals, including children.
Despite the gravity of the situation, the Chief Justice did not adopt any effective measures in petitions filed by Kashmir Times editor Anuradha Bhasin (August 16), senior advocate Huzefa Ahmadi (September 16) and Marumalarchi Dravida Munnetra Kazhagam leader Vaiko, and established the executive supremacy in the issues pertaining to Kashmir. Chief Justice Gogoi even failed to prioritise affairs as he declined to hear a constitutional challenge on the amendment by stating, “No time due to Ayodhya hearing”.
Further, the CJI recused himself, without providing sufficient reasons, from hearing civil rights activist Gautam Navlakha’s plea seeking the quashing of an FIR lodged against him in the Koregaon-Bhima violence case. This reduced public confidence and perception of the independence of the Supreme Court.
“We don’t know of any personal biases/ prejudices that might constitute reasonable grounds for the en masse recusals…Enlightened citizens and admirers of our Supreme Court, both at home and abroad, are also in shock at the court’s reluctance to take up even habeas corpus petitions…To these people, the most powerful court in the world is suddenly looking timid and docile. For comparison, the British Supreme Court was widely appreciated for its prompt ruling against Prime Minister Boris Johnson’s decision to prorogue Parliament. One hopes our judges too will stand up to the new challenges and, through their judgments, put to rest all apprehensions about their independence. After all, they have taken oaths to adjudicate without fear or favour.”
The sexual harassment probe against CJI Gogoi
The sexual harassment allegation against Gogoi was the most controversial incident of his tenure but how it was dealt with created more complications. Instead of constituting an independent panel to hear the allegations, Gogoi himself appointed Justice SA Bobde to conduct an inquiry. Subsequently, the inquiry committee gave a clean chit to the CJI.
The committee departed from the procedure as set out under the law to the extent that it continued with the proceedings despite the complainant withdrawing from the proceedings.
“…what the Supreme Court has done is to undermine the gains of the last two decades in one fell stroke. The Supreme Court has told us that when it comes to one of its own, imbalances of power don’t matter, due process doesn’t matter, and basic norms of justice don’t matter.”
The failure to uphold the integrity of the collegium
The appointments to the Supreme Court under the collegium led by Chief Justice Gogoi raised many eyebrows and were marred with controversies.
On January 10, 2019, the collegium elevated Delhi High Court Justice Sanjeev Khanna to the apex court in complete disregard to seniority, superseding as many as 32 judges (among various high courts). All the questions — including those by a fellow judge of the Supreme Court — on this appointment remained unanswered.
Apart from the arbitrary appointment, the collegiums headed by the Chief Justice did not adopt any strong objections against the delay in appointing Chief Justice of the Bombay High Court, Akil Kureshi, as the Chief Justice of Madhya Pradesh. The government sat on the collegium decision despite the collegium twice sending its recommendation. Finally, the collegium bowed to government objections and changed his appointment to the Tripura High Court.
The government’s reluctance in Justice Kureshi’s elevation is anticipated, due to the fact that he had sent current Union Home Minister Amit Shah to police custody in 2010 in the Sohrabbuddin Sheikh encounter case.
A similar case was seen with the transfer of Retd. Justice VK Tahilramani who, despite her capabilities and seniority, was recommended for the Meghalaya High Court. Despite objections by the State Bar Association on the decision, the collegium did not clarify the reason d’etre. Justice Tahilramani finally resigned. As with the Justice Kureshi case, there were speculations on Tahilramani’s fate because of her 2017 decision on the conviction and life imprisonment of 11 accused in the post-Godhra carnage in the Bilkis Bano gang-rape case.
Ayodhya verdict and Sabarimala review
Chief Justice Gogoi’s tenure ended by pronouncing judgement in two landmark cases. First, the Ram Janmbhoomi-Babri Masjid land dispute pertaining to 2.77 acres of land in Ayodhya. Second, the review petition in the Sabarimala judgment.
The unanimous Ayodhya judgement granted 2.77 acres of land to Ram Lala on “benefit of doubt” of the continued worship by Muslims and faith of Hindu parties over the inner courtyard of Babri Masjid. The judgement is severely criticised for preferring a hypothetical peace over the injustice suffered due to the demolition of the mosque.
The court placed an ironclad double burden of proof that (a) Muslim parties have to show they were in possession of inner courtyard (mosque); and (b) the Muslim parties must show that the Hindu devotees never prayed or entered the inner courtyard of the mosque to conduct their rituals during the same period. The judgement not only mixed law with faith but also mismanaged law with justice. If it was justice or merely a sense of condescension will always be debatable.
“In Ayodhya, on the other hand, the final verdict appears to strike an uneasy detente with a pernicious political ideology that resists substantive justice, reparations for past wrongs, and mutual tolerance. What else is the final relief — of giving the Muslim parties some land at another site to make it up to them for the destruction of the mosque — but only another way of telling them, “you are equal, but must be separate”?”
In 1984, George Orwell elaborated the concept of “doublethink” as a language employed to simultaneously accept contradictory beliefs as correct in order to maintain enduring legitimacy.
Chief Justice Gogoi’s language before and during his tenure reflected this. The tenure of Justice (Retd.) Dipak Misra, the Chief Justice before Gogoi, was marred with personal allegations of corruption and biases. In succession to him, Chief Justice Gogoi raised hopes of doing better — but failed to act on any of them. His tenure may have had no general public controversy, as was the case with Retd. Justice Misra, but any legal eye can see the overt and covert acts delineating progression away from civil rights and justice. There have been instances when Justice Gogoi delivered appreciable judgements — such as bringing the office of the CJI under the Right To Information Act (though conditions apply) — but he will be assessed as his role of Chief Justice. After all, it isn’t about the time of concord. Adversity does not build character, it reveals it.