Chief Justice Ranjan Gogoi’s Turbulent Tenure

Usually, Supreme Court judges are remembered for the judgments they write. Portraying their lives on the bench is, therefore, an uncomplicated task. One only needs to look into and analyse the corpus of verdicts delivered by them. In the case, however, of Chief Justice Ranjan Gogoi, whose term on the court ends on Nov. 17, on his turning 65, the opinions he wrote do not tell us the full story.

To depict his career truly and completely we need to go beyond his writings from the bench, beyond even the ruling that he delivered as part of a unanimous constitution bench in the Babri Masjid-Ramjanmabhoomi appeals. For the manifold controversies that dogged his term perhaps even exceeded those faced by his predecessor in office, Chief Justice Dipak Misra, in a period which was widely viewed as representing one of the court’s lowest ebbs.

The Standoff With Chief Justice Misra

When Justice Gogoi took over the administrative reins of the court, in October 2018, there was a prevailing sense of optimism. After all, in January that year, when he was still a puisne judge, he had taken part, along with the court’s three other senior-most judges, Justices Jasti Chelameshwar, Madan B Lokur and Kurien Joseph, in an unprecedented press conference which called into question various decisions taken by Chief Justice Misra, in his capacity as the “master of the roster.” The judges who had called the press clearly believed that the court’s state of tumult could not be resolved internally, through discussions with the chief justice and their other colleagues. Their consternation, they felt, needed a public airing.

“Unless this institution is preserved, democracy will not survive in this country,” Justice Chelameswar said at the conference. The judges, he added, had “failed to persuade CJI that certain things are not in order and therefore you should take remedial measures. Unfortunately, our efforts failed. And all four of us are convinced that democracy is at stake and many things have happened in recent past,” he said.

The judges also placed on record a letter written by them to Chief Justice Misra. In that, among other apprehensions, they highlighted the CJI’s selective assignment of cases that have far-reaching consequences for the nation to benches comprising junior judges that were chosen by him without a rational basis. And also of concern, they said, was the CJI’s failure to take the government to task for its dithering in finalising the Memorandum of Procedure drafted by the Supreme Court’s collegium providing guidelines for appointment of judges to the higher judiciary.

There has been nary a whisper on the Memorandum of Procedure, and appointments and transfers of judges continue to be made through a process marked by opacity. But even more disturbing is the utter lack of reform of the chief justice’s role as the master of the roster, a feature that has continued to play an ignominious part in a number of incidents since, most notably in the handling by the court of sexual harassment allegations that were made against Chief Justice Gogoi.

Handling Of Sexual Harassment Allegations

In April 2019, a woman, who had originally joined the Supreme Court as a Junior Court Assistant, and who had worked for Justice Gogoi since October 2016, alleged that she had been sexually harassed by the judge, and, what is more, that she had also been unlawfully dismissed from service.

When various news outlets brought her complaint to the knowledge of the CJI’s office, the court’s Secretary-General issued a swift rebuttal on behalf of the judge, terming the allegations “scurrilous”. For good measure, the statement added that it was “also very possible that there are mischievous forces behind all this, with an intention to malign the institution”. The very next day, the CJI, as the administrative head of the court, constituted a bench comprising himself and two other judges to hear what the court described as “In Re: Matter Of Great Public Importance Touching Upon The Independence Of Judiciary”. With no notice issued to the complainant, the court, on its own motion, proceeded to pass an order (which the CJI did not sign) virtually dismissing the complaint as baseless and as motivated by a larger conspiracy to undermine the judiciary’s independence.

Eventually, an in-house committee was set up by the second senior-most judge, Justice SA Bobde, comprising himself and Justices Indira Banerjee and Indu Malhotra, and the chief justice was exonerated – a copy of this report wasn’t made available to the complainant let alone the public which continues to remain in the dark.

Independent of this, the court, as a result purportedly of the complaint, had also appointed Justice (Retd.) AK Patnaik to enquire into charges of possible “fixing of benches” in the Supreme Court, and to examine whether the allegations made spring out of a plot to overthrow the judiciary – this report, which was submitted in a sealed envelope in September 2019 also remains buried.

Sealed Cover

Indeed, despite the evident opacity in the process, the use of sealed envelopes in making decisions has dominated Chief Justice Gogoi’s tenure. Benches led by him have used the device in a range of other cases, from Rafale, where the government was directed to submit details of the pricing of the fighter jet privately to the bench, to the case concerning the erstwhile CBI Director Alok Verma, where the Central Vigilance Commission’s preliminary report on allegations made against him was submitted confidentially to the court.

Nowhere has its harrowing consequences been more apparent than in the aftermath of the Supreme Court’s decisions (delivered by benches presided over by Justice Gogoi) in the cases concerning the National Register of Citizens in Assam. In these proceedings, Justice Gogoi’s bench has repeatedly directed the State Coordinator of the NRC to submit reports in confidence, with neither the government nor the parties affected by the updating of the register being granted access to them.

In doing so, the court, to borrow Lord Atkin’s famous saying, has appeared more executive minded than the executive.

Treatment Of The Executive

This outlook of seeing the judicial role not as a check on governmental power but as an extension of the executive was just as evident in Chief Justice Gogoi’s treatment of the various cases that emanated out of the Union government’s decision on Article 370 of the Constitution. With Kashmir placed under a seemingly endless communications shutdown, and with scores of people placed under detention, including three former chief ministers of the state, the Supreme Court, as the constitutionally assigned counter-majoritarian body, one would have thought, would have urgently intervened to protect basic civil liberties.

In April 2019, a bench headed by Chief Justice Gogoi showed a similar equivocation when it failed to stay the use of electoral bonds in the lead up to the general election. These bonds, which were introduced through the Finance Act of 2017, are in the nature of promissory notes and can be purchased and donated by persons to a political party of their choice. The party can then have the bonds encashed on demand. But the scheme also promises complete anonymity of the donor. Parties that receive donations are mandated to maintain the confidentiality of the donor’s identity.

As I argued here, in BloombergQuint, the scheme is plainly unconstitutional – but the court, which promised to hear the case immediately on its return from summer vacation in July, has not only failed to do so, but has also through its order has created an effective fait accompli on the petitions.

The Final Week

The last week of Justice Gogoi’s term promised much: but apart from his judgment in Rojer Mathew, on the constitutional validity of the Finance Act of 2017, in which he has drawn special attention to the myriad deficiencies in the reasoning employed in upholding the Aadhaar Act as a money bill, virtually every other ruling has proved a disappointment. Some might well celebrate the Ayodhya judgment (the bench doesn’t specify who authored it) as an achievement of substantial note, but the court’s ruling is neither correct on law nor on precepts of moral justice.

The case was simple enough: the bench was asked to decide whether the court had made an error that was palpably evident on the face of its earlier ruling. But Chief Justice Gogoi’s order (which Justices AM Khanwilkar and Indu Malhotra signed on to) simply doesn’t engage with this basic question.

Instead, it refers a set of questions that it says “could” arise to a seven-judge bench while keeping the review petitions pending until those issues are finally settled. What this would actually entail isn’t quite clear from a reading of the order. But to make a reference such as this without actually pointing out a clear error in the earlier ruling cannot under any circumstances be justified as a proper exercise of the Supreme Court’s powers of review.

As Gautam Bhatia has written, what the three-judge majority has done here is to “exhibit a cavalier disregard for a reasoned judgment of a Constitution Bench, and invent a whole new method for people to collaterally challenge judgments they don’t like”, a development that “cannot but have profound and dangerous consequences for the rule of law.”

Suhrith Parthasarathy is an advocate practicing at the Madras High Court.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team