New Delhi: Justice Ranjan Gogoi had created a stir even before he took over as the 46th Chief Justice of India on 3 October 2018.
On a wintry January morning in 2018, Gogoi was among the four Supreme Court judges who held a press conference, in virtual revolt against then chief justice of India (CJI) Dipak Misra, listing the problems afflicting the court and warning that it could destroy democracy in the country.
That led to expectation that the “revolutionary Justice Gogoi” would usher in serious judicial reforms and greater transparency once he took over.
The start had been bright enough. Soon after CJI Gogoi took oath of office, one of his first orders of business was to abandon the practice of “urgent mentioning” where a case was mentioned before the chief for immediate attention.
“No mentioning! We are working out the parameters …if someone is being released today, then yes …if someone is being hanged today, then yes …if somebody is being evicted today, then yes …if there is a risk of demolition, yes …beyond that, No!,” CJI Gogoi had said on 3 October as he took charge.
But it quickly unravelled for the judge who had begun his legal career at the Gauhati High Court in 1978.
Born in November 1954, CJI Gogoi was appointed as a permanent judge of the Gauhati High Court in February 2001, and was transferred to the Punjab and Haryana High Court in September 2010. He was elevated as a judge of the Supreme Court in April 2012.
Now, as his tenure ended Friday, CJI Gogoi’s time at the helm has been equally, if not more, controversial than that of his predecessor Dipak Misra. The CJI has battled sexual harassment charges, accusations of being opaque and criticism of bowing to the Modi government on judicial appointments, among others.
The #MeToo charge
Six months into his tenure, CJI Gogoi faced arguably his greatest crisis in court. In April, reports surfaced in the media that a Supreme Court staffer had accused the CJI of sexual harassment. The allegation came to light after the woman sent a letter along with affidavits to all 22 apex court judges.
It also led to an unprecedented situation. The apex court took up the matter, only that the judge who heard the victim’s grievance was the CJI himself. A special sitting of the court was convened by CJI Gogoi for a “matter of great public importance touching upon the independence of the judiciary”.
Journalists soon thronged courtroom 1 to hear how a judge who was himself named in a case was hearing his own matter. CJI Gogoi held forth, speaking of how he was being targeted to even narrating all the assets he owns.
Soon, a committee of SC judges led by CJI-designate Justice S.A. Bobde, was formed to look into the allegations. A clean chit was given to the CJI by May. The woman complainant had, however, withdrawn from the committee proceedings as she feared her version was not being presented appropriately.
Following this, the Delhi Police junked cases registered against the woman’s husband and the brother-in-law but the case still creates a buzz in the corridors of the apex court.
Sealing the deal
CJI Gogoi’s tenure at the helm also led to the evolution of what is now being termed as the “sealed cover” litigation.
It began when a CJI-led bench was supervising the National Register of Citizens (NRC) process in Assam. The apex court began asking the then NRC state coordinator, Prateek Hajela, to report directly to it through sealed envelopes. Sealed covers essentially meant that information submitted to the judge would be exclusive and not shared with any other party in the case.
The bench comprising Justices Gogoi and Rohinton F. Nariman even directed Hajela to not share any information on the NRC with any executive, legislative or judicial authority of the state without the court’s permission. Even the attorney general, a constitutional office-holder, was not allowed to view a report that contained a list of 10 identity proof documents that those left out of the NRC had to produce.
The practice soon spread to other cases. Details of the decision-making process in the Rafale deal was the next to be submitted in a sealed cover.
In the CBI versus CBI saga, CJI Gogoi was furious about the alleged leak of ousted CBI chief Alok Verma’s confidential reply to the Central Vigilance Commission (CVC), which was directed by the court to investigate the corruption allegations against Verma.
Soon, the sealed covers became a norm. Whether it was the Bhima Koregaon case or the bail plea of former finance minister P. Chidambaram, evidence was being submitted in sealed covers.
Collegium under Justice Gogoi
It’s not only his time in court, CJI Gogoi’s tenure heading the Supreme Court collegium, which is responsible for the appointment of judges, hasn’t been free of controversy.
Gogoi’s collegium, of the five senior-most judges in the court, has time and again been accused of bending to the Modi government’s will. This, despite the collegium system supposedly reiterating the independence of the judiciary.
While a tussle between the collegium and the government isn’t new, it was hoped that CJI Gogoi would usher in greater transparency.
When Union minister Ravi Shankar Prasad took charge of the law portfolio for the second term, he maintained that the central government would not be a “post office” in judicial appointments.
Now, with CJI Gogoi’s collegium coming to an end, records show that the central government has often got away with its stand, opposing a number of appointments.
The most high-profile of these was the cases of Justices A.K. Kureshi, who had once ruled against Modi and Home Minister Amit Shah, and Vikram Nath. Justice Nath was recommended to be the CJ of the Andhra Pradesh HC while Justice Kureshi was recommended to head the Madhya Pradesh HC.
The Modi government, however, red-flagged the recommendations and fresh appointment notifications were issued. Justice Nath has now been appointed as the Gujarat HC chief justice while Justice Kureshi is set to take over in Tripura.
The transparency of the collegium was also at stake when Justice V.K. Tahilramani, the chief justice of Madras HC, one of the largest high courts, was transferred as the CJ of Meghalaya HC, one of the smallest in the country.
Even though the judge tried to reason with the collegium, the CJI-led panel held its ground and Justice Tahilramani resigned. The apex court suffered more controversy in this episode when not only was the resignation accepted by the President, but CJI Gogoi soon allowed the CBI to investigate Justice Tahilramani for some alleged irregular property purchases in Chennai.
This, however, wasn’t the first time that Justice Gogoi has been at odds with another judge. In 2016, the CJI was at loggerheads with former Supreme Court judge, Justice Markandey Katju, over the sensational Soumya murder and rape case from Kerala.
A bench led by Justice Gogoi set aside the death penalty handed to the accused for allegedly pushing Soumya, 23, off a train and then sexually assaulting her. Justice Katju, by then having retired from the court, slammed the verdict saying Gogoi did not even have “elementary knowledge of law”.
It prompted Justice Gogoi to slap a contempt notice on Justice Katju. When things heated up and Justice Katju reminded Justice Gogoi that he was junior to him, the serving judge asked if Justice Katju could be escorted out of the court. Only the loud murmurs of “wrong, wrong, it’s wrong, your lordship” ensured that it did not happen.
To recuse or not to
Justice Arun Mishra recently created a stir when he refused to recuse from a land acquisition case that he himself had ruled on in February last year. The stakeholders in the case had objected to him leading a bench examining the correctness of his own judgment.
Justice Mishra, however, headed another bench that recusal was up to the conscience of the judge involved, adding that no “litigant can choose who should be on the bench”.
This though is not the first time that the apex court had heard such a request under CJI Gogoi. Earlier this year, the IAS officer-turned-human rights activist, Harsh Mander, requested the CJI to recuse from hearing a petition seeking the release of over 900 individuals — deemed to be foreigners — who have spent several years in detention under inhumane conditions in Assam.
CJI Gogoi, who hails from Assam, not only refused to recuse but also changed the title of the case whereby Mander was no longer the lead petitioner.
Even before becoming the CJI, Justice Gogoi had a reputation of not entertaining requests for recusal and would only stay away from a case if he had decided on his own.
In February 2016, Justice Gogoi had directed the Bar Council Of India to take action against a lawyer who sought the judge’s recusal from a case. Advocate Mrinal Kanti Mandal, appearing for some appellants in a 2012 civil appeal, had asked for Justice Gogoi to recuse from the case as the judge had allegedly met family members of the respondents, the Mewar royal family, while on a family vacation in May 2015.
A miffed Gogoi ordered action against the lawyer and said if he ever found there was a conflict of interest, he would recuse from a case himself.
Within the court, CJI Gogoi has often taken functionaries to task.
In one striking instance, he directed former interim CBI director M. Nageswara Rao to “go and sit in one corner of the court till it rises” for violating the apex court’s orders.
Not too many, however, are forgiven outside the court as well, with the CJI’s speeches at various events making headlines, and not always for the right reasons.
Soon after assuming charge, the CJI had asserted that it was in “our best interest” to heed the advice of the Constitution and that not doing so would result in “sharp descent into chaos”. A few days later, he expressed “apprehension” at young lawyers’ unwillingness to become judges, saying one reason was that the higher judiciary was “losing its aura and majesty”.
On Independence Day this year, he claimed that the judiciary was witnessing an unprecedented rise in instances of “indecorous” acts and lamented that graceful discourses and deliberations were increasingly being replaced by “loud and motivated” conduct in the courts.
Days before this event, he had on another occasion expressed concern over the “belligerent and reckless behaviour” by some individuals and groups and hoped the country’s legal institution will overcome such “wayward” elements.
A blockbuster exit
If his tenure wasn’t eventful enough, CJI Gogoi’s last few days in office had the judge adjudicating on some of the most high-profile cases in recent years. Justice Gogoi headed the five-member bench that unanimously paved the way for a Ram Temple in Ayodhya, led another bench that upheld a Delhi High Court judgment bringing the CJI under the Right to Information Act while also hearing review pleas on Sabarimala and the Rafale deal row.
But these aren’t the only cases that his final months will be known for.
Over the past two months, the apex court under Gogoi has drawn flak from several quarters for its handling of the petitions challenging the Constitutional validity of the Modi government’s decision to scrap Article 370 withdrawing the special status granted to Jammu and Kashmir.
The apex court’s handling of the habeas corpus petitions regarding the lockdown in Kashmir also drew considerable flak from several quarters. Lawyers and scholars pointed out that the court had failed to follow due process in dealing with these petitions, by constantly delaying them and sending petitioners to J&K instead of asking authorities to produce “the body” of the detainee together with… “the cause of his being taken and detained”.
This prompted the United Nations High Commissioner for Human Rights to issue a statement, saying the Supreme Court “has been slow to deal with petitions concerning habeas corpus, freedom of movement and media restrictions”.
There were voices of dissent from within the country as well, with reputed scholar and Constitutional expert A.G. Noorani writing, “Thus, the Gogoi court has, at reckless speed, run a coach and four through the centuries-old established law on habeas corpus.”
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