On 12 January 2018, four senior-most judges of the Supreme Court, including Justice Ranjan Gogoi, held a historic press conference. The judges informed the nation that the integrity of the Apex Court, and thereby the survival of democracy itself, was in danger and that they were speaking out publicly since their efforts to resolve the issues internally with then Chief Justice of India Dipak Misra had failed. Poignantly, Justice Gogoi stated that it was a “discharge of a debt to the nation” that motivated them to address the public.
The press conference and a letter written by the four judges to the then Chief Justice raised concerns regarding the administrative role discharged by the latter in reassignment of cases and finalisation of the Memorandum of Procedure relating to the appointment of judges. Justice Misra’s tenure showed that the seemingly benign administrative power of the Chief Justice to allocate cases had the potential of being abused. Justice Misra’s tenure ended with allegations of him cherry-picking judges to hear politically sensitive cases so as to influence the outcome, and listing cases in a manner that led to him being a judge in his own cause. When Justice Gogoi took over as the Chief Justice of India, there was widespread optimism that the institutional credibility of the SC would be restored since he was one of the four judges who spoke out at that historic press conference expressing concerns about the hallowed institution’s integrity.
But on April 20 this year, reports emerged that a complaint alleging sexual harassment by Chief Justice Gogoi had been sent on a sworn affidavit along with supporting evidence to all the sitting judges of India’s top court. Despite it being a Saturday, a notice was issued on the SC website stating that a three judge ‘special bench’, which included CJI Gogoi, was being constituted to hold court on that day itself—allegedly on the ‘mentioning’ by the Solicitor General. During this ‘special hearing’ the Chief Justice protested his innocence against the allegations made against him in open court and instituted a suo-motu writ petition declaring that the allegations against him were an attempt to threaten the independence of the judiciary. The Attorney General and Solicitor General were also present in court, and immediately aligned themselves with the CJI and reportedly made disparaging comments about the complainant. Curiously, the order passed after the hearing did not carry the Chief Justice’s name or note his presence on the bench.
Public demands to inquire into these allegations led to the constitution of an internal committee comprising three sitting SC judges for this purpose. Subsequently, reports emerged that the complainant had decided not to participate in the inquiry due to several legal issues with the functioning of this Committee. Justice Chandrachud reportedly wrote a letter to the committee, urging it to accommodate the demands of the complainant. Despite this, the committee proceeded ex parte and within a matter of 5 days, held the Chief Justice to be innocent.
Parallelly, to protect the ‘independence of the judiciary’, the SC entertained ever-changing conspiracy theories by a lawyer who alleged falsity of the sexual harassment complaint and set up an external inquiry under Retired Justice A K Patnaik. The committee submitted its report in September 2019, but till date neither has it been published nor any action been taken on its basis.
The treatment of the sexual harassment allegations by CJI Gogoi raised several doubts regarding his commitment to the institutional integrity of the Supreme Court. Several uncomfortable patterns of conduct including being a judge in one’s own cause, constitution of a special bench of select judges to hear a matter out of turn and opaqueness in internal functioning of the court had once again reared their head. Other administrative issues in the Apex court including the tenets of allocation, prioritisation and accountability in functioning persisted and remained unresolved during the tenure of CJI Gogoi.
Assignment and prioritisation of cases
From August 6 this year, a Constitution bench of the SC heard the land dispute in relation to the Ayodhya Case on a day to day basis. Constitution benches with five or more judges decide questions of constitutional ramifications. But there was no question of constitutional interpretation that arose in the land dispute in Ayodhya that necessitated the setting up of a five judge bench by CJI Gogoi, instead of the earlier bench of three judges that was to hear the dispute. When the constitution of this bench was objected to, the Supreme Court responded that this was a matter of the Chief Justice’s prerogative.
When hearings for the Ayodhya case commenced, a slew of petitions were filed at the same time before the Apex Court in relation to the constitutional and fundamental rights crises facing the erstwhile state of Jammu and Kashmir after the events of 5 August 2019. The SC under Chief Justice Gogoi faced strong criticism for the discomforting lack of urgency in hearing the petitions – challenging the communication lockdown, detention of persons, abrogation of the ‘special status’ and the bifurcation of the erstwhile state - particularly those dealing with blatant fundamental rights restrictions.
The law on fundamental rights demands that the greater the restriction, the higher the need for strict and immediate scrutiny by the Court to determine if the restriction is provided by law, proportional and necessary. The writ(s) for habeas corpus were rendered meaningless when the bench presided over by Chief Justice Gogoi failed to direct the State to either immediately produce the persons detained before the Court, or to prove the legality of the detention. Similarly, the SC neither demanded the State to show the legal basis for the communication blackout, nor did it pass any substantive interim orders that may have ameliorated the restrictions on the rights of the citizens in Kashmir. Once, as this report shows, the bench presided over by Chief Justice Gogoi expressed inability to hear the Kashmir petitions expeditiously as it was busy hearing the Ayodhya matter.
The indication has been somewhat clear that multiple factors go into expeditiously hearing matters and constituting benches, and issues of violations of fundamental rights of an entire population of a state may not be sufficient to merit urgency of hearing or mandating hard timelines from the State to be answerable to Court.
However, in relation to the case concerning the National Register Of Citizens for Assam, a bench presided by CJI Gogoi on 13 August 2019 directed that it would not extend the deadline for the mammoth project of creating the ‘final NRC’ list beyond 31 August 2019. Even the government’s request for extending the timeline was rejected. The urgency demonstrated by the bench presided over by the CJI Gogoi is questionable because in the same order, the court noted that the implementation of NRC is subject to the outcome of a separate constitutional bench decision dealing with the definition of ‘citizen’ under the Citizenship Act.
The question of whether “every person born in India” constitutes a citizen, irrespective of the nationality of the parents, a question that is at the fulcrum of the NRC process, is yet to be decided. The implementation of NRC is also subject to a constitutional challenge to the separate cut-off date for Assam as compared to the date of 1951 for the rest of India. It is unclear as to where the pressing need to determine illegal foreigners comes from—particularly since the entire basis of the NRC process is subject to two pending constitutional challenges.
The CJI recently said at a book launch that the NRC was a ‘base document’ for the future and that there is an “urgent need to ascertain with some degree of certainty, the number of illegal migrants”. As per the ‘Restatement of Values of Judicial Life’ adopted by the SC in its full Court meeting on May 7, 1997, a judge shall not enter into a public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination. By making public comments on the urgent need for the NRC Project, while deciding cases on the implementation of the same project, the CJI has risked shaking public confidence in the idea of an unbiased judiciary that is unbridled by any political motivations.
The situation of ‘constitutional evasion’ by the SC during the tenure of CJI Gogoi was particularly noticeable in the case of electoral bonds. Despite the controversial nature of the amendments relating to electoral bonds, and the fact that the Election Commission itself had opposed these amendments in court stating that they would cause a blow to transparency in political funding and allow circumvention of mandatory provisions of the Representation of People Act, 1951, the SC refused to stay the scheme and the related amendments before the general election in 2019. Although the top court noted that the issues at play would have “a tremendous bearing on the sanctity of the electoral process in the country”, it stated that it did not have time to hear the issue in detail and directed political parties to submit the details of the donor of each electoral bond to the Election Commission in ‘sealed cover’ for the time being. As explained here, in such cases the evasiveness about deciding the constitutionality of the issue results in effectively upholding constitutionality since any subsequent judgment would be an exercise in futility. Even if the court subsequently found the amendments to be unconstitutional, it would be powerless to change the results of the elections.
Appointments & Transfers of Judges
Within the first few months of Chief Justice Gogoi’s tenure, controversies regarding the appointment of Supreme Court judges erupted. In December, the collegium had recommended the appointment of Justice Pradeep Nandrajog and Justice Rajendra Menon to the Supreme Court. However, in January these recommendations were dropped and the collegium proceeded with recommending the appointment of Justice Dinesh Maheshwari and Justice Sanjiv Khanna instead, superseding 30 judges senior to Justice Sanjiv Khanna. Both sitting and retired judges of the Supreme Court and High Courts raised objections to this change in the collegium’s recommendation.
More recently, controversies have emerged against the transfer of well-regarded High Court judges, Justice Akil Kureshi of the Gujarat High Court and Justice Tahilramani of the Madras High Court to smaller High Courts of Tripura and Meghalaya respectively. Due to the lack of transparency in these appointments, there has been speculation that these judges were transferred to the smaller courts as they had previously passed orders that were not favourable to the ruling dispensation.
Previously the collegium had recommended the elevation of Justice Kureshi as Chief Justice of the Madhya Pradesh High Court on two occasions, however the recommendation was kept in a stalemate by the central government. The Gujarat High Court Advocates Association (GHCAA) challenged the inaction by the government to confirm the recommendation of Justice Kureshi as Chief Justice of MP High Court. While this petition was pending, the collegium modified its recommendation and transferred Justice Kureshi to the Tripura High Court. This was soon approved by the Centre, thereby rendering the GHCAA petition infructuous. In a unique scenario, the decision to change the recommendation made by the CJI as part of the collegium on the administrative side, had a direct bearing on the GHCAA petition that the Chief Justice was hearing on the judicial side.
In its order dated September 23 regarding the GHCAA petition, the bench presided over by the Chief Justice observed that interference in matters of appointment, transfer and posting of judges affects the system of administration of justice and, therefore, does not augur well for the institution.
The inaction on the inquiry report submitted by Justice Patnaik pursuant to the sexual harassment allegations and the order in the Kureshi case shows that the terms ‘judicial independence’ and ‘administration of justice’ are often invoked to avoid uncomfortable questions raised.
The top court last week confirmed that the office of the CJI is a public authority under the RTI Act. It reiterated that judicial independence is a matter of public interest and clarified that the purpose of judicial independence is not to “undermine and avoid accountability.” The court clarified that the independence of the judiciary is not preserved by denial of access to information and that independence in a given case may well demand openness and transparency by furnishing information.
At a time when the goings-on in courts are under immediate, constant, live-updated vigil, retaining public confidence in an unprejudiced and independent Supreme Court is even more crucial. Chief Justice Gogoi has left the top court after having been part of a bench that re-emphasised in its judgement in the RTI case that, “Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of, judicial independence.”
There is a greater need for accountability on the procedural and administrative dealings of the Apex court, since these decisions involve a wider latitude of discretion and are thus open to a higher level of public speculation unlike substantive judgments which are based on settled principles of law. As the Supreme Court enters the tenure of its next administrative head, the office of the CJI will need to be consistently answerable to the people of the nation and to no one else—something Justice Gogoi himself highlighted at the unprecedented press conference held on 12 January 2018.
The authors are Delhi-based advocates and members of the Women in Criminal Law Association.
This article originally appeared on HuffPost.