In Upper House nomination, a fall for ‘aloofness’

The nomination of a former Chief Justice of India to the Rajya Sabha is a blow against the judiciary’s independence

Within five months of his retirement as Chief Justice of India, Justice Ranjan Gogoi has been nominated to the Rajya Sabha by the government. Shortly before his retirement from the Supreme Court of India, he delivered several important verdicts with far-reaching political consequences that left the government pleased, including the Ayodhya judgment . Before that, Justice Gogoi dismissed a review of the Rafale fighter aircraft deal without substantially dealing with the grounds on which the original judgment , negating an independent investigation, had been challenged. The original judgment relied upon several pieces of false and misleading information, conveyed to the Supreme Court by the government, in an unsigned note and handed over in a sealed cover.

Key judgments handled

During his tenure, Justice Gogoi also presided over and pushed through the National Register of Citizens (NRC) in Assam, an exercise that has

excluded more than 19 lakh people from the final version of the citizenship register, and which has been widely criticised on several grounds. In short, the exercise presided over by him led to a huge humanitarian crisis, but fed into the government’s narrative and methods by which it now seeks to undertake a nation-wide NRC exercise, and further a divisive politics.

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Then there was the

Sabarimala temple review . A Constitution Bench judgment of the Supreme Court held that excluding menstruating women from entering the temple was discriminatory, and therefore against “constitutional morality”. A Bench headed by Justice Gogoi gratuitously referred these issues to a larger Bench , much to the delight of the government.

One could multiply the cases which Justice Gogoi decided during his tenure as the Chief Justice of India or in the run-up to it, and it would be safe to say that his judgments left the government pleased, with scarcely any politically-sensitive case being decided against the government’s wishes. His tenure, especially as the Chief Justice of India, only left many observers puzzled about him — he was a judge who had participated in a press conference held on January 2018, criticising the then Chief Justice of India (and his predecessor), Dipak Misra, and accusing him of abusing his powers as master of roster to fix politically-sensitive cases before convenient benches.

There was also the occasion when he delivered the Ramnath Goenka lecture, in 2018, just before his elevation as the Chief Justice of India, where he eloquently declared that the country needs not only noisy journalists and independent judges but even independent journalists and noisy judges. One expected thus as the Chief Justice of India, that he would be robustly independent in the interests of justice and equity and uphold the rule of law.

A turning point

So what led to the virtual collapse of his independence after becoming the Chief Justice of India? Allegations of sexual harassment against him give us a good insight into this. A female staffer who was asked by him to work at his residence, accused him in an affidavit of detail, of harassment soon after he became the Chief Justice of India. The action taken against her was astounding. Not only was she dismissed from service in an ex-parte hearing on frivolous grounds, but her brother-in-law, who was inducted to the Supreme Court staff under Justice Gogoi’s discretionary quota, was also terminated without assigning any reasons. Soon after, the Delhi Police suspended her husband and his brother — again on baseless charges. A fabricated case was registered against the staffer by a complainant who was thereafter untraceable; she was harassed by the police on the basis of this. She was then taken by the station house officer of the Tilak Marg police station to the Gogoi residence and made to apologise; she submitted herself to this only because of the terror of her harrowing experience at the hands of the Delhi police.

Immediately after her ordeal (that was detailed in the affidavit to the judges) was published by news portals, Justice Gogoi called for an extraordinary hearing, on Saturday (along with Justice Arun Mishra), where he accused the woman staffer of being a criminal. Justice Gogoi sat as a judge in his own cause in a case he titled “In Re: A Matter of Great Public Importance Touching Upon the Independence of the Judiciary”. However, the disrepute that this brought upon India’s highest judiciary and the furore caused by the hearing, forced him to appoint an in-house committee headed by the present Chief Justice of India, which quickly absolved Justice Gogoi in extraordinary ex-parte hearings. In these hearings, the woman’s request for being allowed a lawyer, cross-examination of witnesses and recording of proceedings were all refused, forcing her to walk out.

The report absolving Justice Gogoi, was put out by the Supreme Court registry as a press release, but a copy of and substance of the report has not been made available even to the complainant.

It is not possible for the Delhi police to have embarked upon acts of malafide harassment of the woman staffer and her family , without the influence of Justice Gogoi himself. In fact, one of the complaints on the basis on which her husband was suspended and disciplinary proceedings initiated against him was a complaint by Justice Gogoi’s Secretary.

I am privy to the fact that just before his retirement, Justice Gogoi used several channels to get the woman to withdraw her complaint against him. These channels included staffers of the Supreme Court registry as well as senior government officials. In the end, the staffer’s termination was withdrawn by the Supreme Court on the orders of the present Chief Justice of India with retrospective effect and with payment of full back wages, after Justice Gogoi retired. She was also given her due of maternity leave for six months. This is truly extraordinary given that Justice Gogoi had accused her of being a criminal in open court and the present Chief Justice of India who restored her job and benefits, had disbelieved her complaint in the in-house committee.

It is against this background that we need to look at Justice Gogoi’s nomination to the Upper House, on March 16.

A forgotten code

The 16-point code of conduct for judges or as it was called the “ Restatement of Values of Judicial Life ” (adopted at a Chief Justices Conference in May 1997) states: “6. A judge should practice a degree of aloofness consistent with the dignity of his office”; 7. A judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned”.

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Obviously this “aloofness” is a most essential trait needed from politicians or functionaries of the government. Unfortunately these values seem to have been forgotten by judges who invite politicians to their personal functions, eulogise them in public or call them for personal favours. One can understand that there could be some in the political class who may be long-standing personal friends of judges, but then it is incumbent on such judges not to hear and decide cases of those politicians who are their personal friends. Judges can also interact with functionaries of the government in their official capacity for official work. But we now see the repeated spectre of judges hearing and deciding cases of politicians with whom they have a personal camaraderie.

This code of conduct also lays the basis of how post-retirement conduct ought to be. For example if a judge after deciding politically sensitive cases involving particular political parties or politicians, soon after retirement seeks and gets a plum post such as a Rajya Sabha nomination by those very politicians or parties, it would obviously raise serious questions about his or her independence as a judge when he or she had decided those cases.

Justice Gogoi and the government’s actions in the sexual harassment case and the offer of a Rajya Sabha seat by the government, raise serious doubts about the fairness of many critical judgments, including the ones mentioned above that were under Justice Gogoi’s watch. The precedent that he has set strikes a blow against the independence of the judiciary. I hope that this shameful act will lead to public opprobrium which will deter other judges from emulating such conduct.

Prashant Bhushan is a public interest advocate at the Supreme Court of India and Convenor of the Campaign for Judicial Accountability and Reforms