Why CJI Gogoi is under fire for defending Assam’s NRC while it’s still sub judice

CJI Ranjan Gogoi said the Assam NRC was a base document for the future, and 19 lakh or 40 lakh people being left off it was not the point.

Chief Justice of India Ranjan Gogoi spoke about the NRC at an event in New Delhi Sunday | Photo: Suraj Singh Bisht | ThePrint

New Delhi: Chief Justice of India Ranjan Gogoi Sunday publicly defended the National Register of Citizens (NRC) exercise in Assam. 

Addressing the launch of a book titled ‘Postcolonial Assam 1947-2019’ by documentary filmmaker and author Mrinal Talukdar, the CJI said: “Assam NRC is not a document of the moment… But a base document for the future. A document on which we can determine future claims… 19 lakh or 40 lakh is not the point.” 

The statements evoked a sharp response, especially on social media, with many saying the CJI should not have made such comments publicly, especially considering the controversial and political nature of the NRC exercise. 

Gogoi said stripping 19 lakhs or 40 lakhs people of their citizenship does not matter & the critics of NRC were not only disassociated from ground reality, but were also affecting the vikas of Assam.
Why do New India judges sound like politicians?https://t.co/YEI0ilzbdr

— Geet V (@geetv79) November 4, 2019

#CJIRanjanGogoi defends #NRC in Assam, says it’s been pending since 1951. Gogoi was the darling of the old durbari media & led revolt against previous CJI in that infamous press conference of 4 collegium justices.

Ahead of the #Ayodhya verdict, watch his vilification begin. pic.twitter.com/cVmVo56t1F

— Minhaz Merchant (@MinhazMerchant) November 4, 2019

This thread shows why Justice Gogoi was not the right person to hear the NRC case. An application made for his recusal was also thrown out. The entire exercise stands colored by this speech. https://t.co/9Pwzn1UM4J

— अंशुल (@Ghair_Kanooni) November 3, 2019

Did the CJI violate the code of ethics for judges by speaking publicly about NRC? ThePrint explains.

The code of ethics

The ‘Restatement of Values of Judicial Life’ adopted by the Supreme Court on 7 May 1997 is a code of judicial ethics and serves as a guide for an independent and fair judiciary.

Point 8 of this document states: “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.”

Besides this, Point 2.4 of the Bangalore Principles of Judicial Conduct, 2002, states: “A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process.”

Hence, judges are expected to refrain from making comments about proceedings before them that might lead to questioning of the fairness of the entire process. 

Gogoi, who was born in Assam, is the first judge from the Northeast to serve as CJI. He, along with Justice Rohinton F. Nariman, initiated the NRC update on 17 December 2014 in Assam Sanmilita Mahasangha v Union of India. While the update of the NRC sprang from a political demand to drive undocumented migrants out of the state, it has since become a court-monitored exercise. 

The court initially set December 2014 as the deadline for monitoring the updating of the NRC. The draft was, however, only published in July 2018, leaving out around 40 lakh people. In the final list published on 31 August 2019, 19.06 lakh were excluded. 

In the last hearing, the court shifted Assam-Meghalaya cadre IAS officer Prateek Hajela — the NRC coordinator — to Madhya Pradesh. The matter will next be heard on 26 November, nine days after Gogoi’s retirement.

Is the NRC final?

The updated register might not be the final word on the citizenship status of the state residents. This is because the update is subject to the orders to be passed by the Constitution bench on Sections 3 and 6A of the Citizenship Act, 1955. 

Section 3 deals with the acquisition of citizenship by birth in the case of every person born in India on or after 26 January 1950, but before 1 July 1987.

Section 6A, which was introduced following the Assam Accord, classified illegal migrants who entered Assam from Bangladesh into three groups: Those who entered the State before 1966, those who came between 1966 and 25 March 1971 (the official date of the commencement of the Bangladesh War), and those who entered after 1971. The first group was to be granted citizenship, the second group was to be granted citizenship after 10 years, and the third group was to be detected and expelled in accordance with the law.

The Guwahati-based Assam Sanmilita Mahasangha, along with Assam Public Works (APW), the main petitioner in the NRC case, challenged Section 6A on the grounds that there cannot be an exclusive cut-off date for one state while a separate date is applicable in the rest of India. 

So, if the constitutional bench declares these two provisions unconstitutional, the NRC list might become untenable or might be subject to changes, depending on the verdict.

‘Learn to trust your judges’

In May this year, former IAS officer and activist Harsh Mander had also demanded recusal of CJI Gogoi from his petition seeking humane conditions in detention centres. 

His reasoning was that the statements already made by the CJI on the subject “raise a very serious apprehension” in his mind that the CJI may be “influenced by subconscious bias” in deciding his petition. 

Gogoi, however, gave Mander a dressing down and struck off his name as the petitioner, substituting it with that of the Supreme Court Legal Aid Committee. 

The case was then converted to one for deportations. In fact, during one of the hearings, while the central government suggested the release of a few detainees, the bench reacted to this with great anger, questioning the government repeatedly about its failure to deport individuals who had been held to be foreigners.

Lawyers divided

Lawyers are divided on whether CJI Gogoi should’ve spoken publicly about NRC.

Senior advocate K.T.S. Tulsi felt it was “improper”.

“The rule of sub judice applies to both lawyers and judges. Just as lawyers have to avoid making comments which may prejudice the outcome, judges have to observe the same code of conduct. It is not right for one of the judges to say that all others are armchair philosophers,” Tulsi told ThePrint.

He added that “court decorum must never be allowed to be vitiated”, and that “there should be some moderation observed by the judges”.

However, senior advocate Geeta Luthra said there was nothing wrong in the CJI having spoken about the NRC process at a public event. 

“There is no violation of the code of ethics by the court. Every lawyer or judge should also go by their own sense of perception. Courts usually have their own sense of what is wrong and what is right. They should just not give a perception that they are prejudging or pre-announcing on a case,” Luthra said.

This, she said, was not the case with regard to the NRC, as the Supreme Court had already pronounced a series of judicial orders and what remained was to a large extent only implementation of those orders, and ensuring that there was no violation of human rights and natural justice while giving effect to those orders.