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Dec 14, 2021

'Justice for the Judge', Injustice for Everyone Else

Justice Ranjan Gogoi’s time as CJI was marred by three sins. After he retired, he added a fourth. His book is meant to defend his actions but makes a poor case on each count.
Ranjan Gogoi. Credit: PTI/Illustration by The Wire
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Ranjan Gogoi was a terrible Chief Justice of India and his just-released autobiography – meant to be a defence of his controversial tenure – tells us what a bad lawyer he is, even in his own cause. The series of interviews he has given has further cemented this impression.

Gogoi’s time as CJI was marred by three sins.

The first of these was the manner in which he used his power as master of the roster to sidetrack key cases, fast-track others and assign politically sensitive cases to hand-picked judges. Second, the highly questionable verdicts he delivered as the head of various benches –  from major ones like Ayodhya and Rafale to others like the freedom of speech petition of Abhijit Iyer-Mitra, jailed by the Odisha police for a joke. His handling of the National Register of Citizens also comes in this category, as does his attitude towards refugee rights and India’s customary international law obligations.  Third, of course, was the manner in which he handled the charge, levelled by a former court staffer against him, of sexual harassment.

After retirement, Gogoi added one more black mark: he accepted the gift of a nominated Rajya Sabha seat from the government within weeks of demitting office. The only other time a former CJI accepted such a favour was Ranganath Mishra, six years after demitting office. Mishra was rewarded for whitewashing the 1984 massacre of Sikhs in an official enquiry. In his book, Gogoi wisely refrains from citing this unsavoury precedent. Perhaps unsurprisingly, his career as an MP has so far been singularly undistinguished. His attendance too has been poor. His statement that he attends parliament when he “feels like it” has earned him a privilege notice.

In his book, Gogoi has little to say about the Ayodhya and Rafale judgments other than to hide behind the fact that the other judges on the bench concurred. While one does not normally expect a judge to write a defence of a judgment he or she has delivered, Gogoi is silent about the factual errors the Rafale judgment was riddled with. On Ayodhya, while this is not the place to go into the horrendously flawed judgment –  which essentially allowed those who had demolished the Babri Masjid in 1992 to reap the fruits of their crime – Gogoi has no cogent explanation for why the title-suit was so urgent that it needed to be fast-tracked even before the criminal trial in the matter had ended and when various constitutional matters having a crucial bearing on the future of electoral democracy (the electoral bonds matter) or law and order and federalism (the Article 370 issue) were allowed to languish for want of attention.

The caption Ranjan Gogoi gives this photo: “Celebrating the landmark Ayodhya verdict: In conversation with my brother judges at Taj Mansingh on 9 November 2019.”

Gogoi has compounded his injudicious tone-deafness by publishing a photo in the book of the Ayodhya bench enjoying wine and dinner in a hotel with the caption, ‘Celebrating the landmark verdict’. The words are his alone – and not that of his brother judges – but the very fact that the CJI can ‘celebrate’ the conclusion of an adversarial case – and go public about it too – tells us how ill-suited he was to judge the matter in the first place.

Gogoi mounts a weak defence of his failure to prioritise the cases related to the reading down of Jammu and Kashmir’s autonomy and the ending of its statehood, as well as his handling of the habeas corpus cases which arose when the government illegally detained the erstwhile state’s entire democratic leadership. The truth is quite the opposite. And he makes no attempt at all to answer why the Electoral Bonds case, so vital to the conduct of free and fair elections in India, was not taken up.

The most atrocious parts of the book are, of course, reserved for his attempt to give an explanation for his handling of the sexual harassment allegation by a court staffer.

Bowing to the near unanimous view of all those who have any understanding of law and propriety, Gogoi concedes that he should not have tried to be a judge in his own case. But even that concession is half-hearted and insincere: “My presence on the Bench, which in hindsight could have been avoided, was the expression of indignation roused on the spur of the moment by an accusation which was beyond belief and comprehension.”

Gogoi repeats the claim that the woman had been dismissed following an “ex parte departmental proceeding in respect of certain specific charges which were in no way connected with the allegations levelled by her.” This claim might have held water if he had provided data to show dismissals for these “specific charges” were not unusual in the Supreme Court.  He might also have addressed the ‘coincidental’ fact that the woman was then also arrested on a trumped up criminal charge, and that both her husband and brother-in-law were suspended from their police jobs in what clearly looked like an act of vendetta executed by other dramatis personae, presumably on his behalf.

In an interview to India Today TV, Gogoi, while conceding that his presence on the bench was “perhaps” a mistake, hides behind the fact that the order passed that day did not give him a ‘clean chit’. Gogoi is factually incorrect.

Here is the brief order issued on April 20, 2019:

“Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable.” (emphasis added)

The cause and the subject of the suo motu hearing convened by Gogoi that day were the charges against him. So when the bench assembled by him as master of the roster, without any hearing on the merits, refers to those charges as “wild and scandalous allegations [which] undermine and irreparably damage reputation and negate independence of judiciary”, is this not a ‘clean chit’?

The worst part of Gogoi’s ‘defence’ of his handling of the matter in the book is his reference to the complainant’s “antecedents” and his suggestion that the allegations were the product of a conspiracy to defame him by “person(s) propping the staffer”.

His book also attempts to make light of the news report in The Wire that the staffer and her family members were probable targets of Pegasus spyware, which found that as many as nine numbers used by her and her family members were present in the leaked database. “The snooping is alleged to have taken place after the complainant had submitted her affidavit on 19 April 2019,” he writes. “Her best case, which was disbelieved, had already been put forth before the alleged snooping took place,” he adds, implying, therefore, that there would have been no reason for anyone to place her under surveillance after that.

In fact, there are many reasons why whoever chose the woman and her family as targets for spyware did so after she submitted her affidavit, and none of those reasons are flattering to Gogoi and his leadership of the Supreme Court.

Gogoi is upset at the “insinuation” – made by whom, he does not say – that the information gathered might have been supplied and used by the Justice Bobde committee which probed the sexual harassment charge against him. And he warns darkly, in a message to the Establishment irked by the free media,

“I think the time has come for the right-thinking majority to speak up. They can no longer enjoy the comfort of a non-confrontationist approach staying clear of issues and being content that they have been spared the unfortunate. For, if unchecked, tomorrow the monster may devour them too.”

As CJI, Gogoi did little to further the cause of justice and the constitution. As an MP now, he wants the powers that be to confront the “monsters” who still cherish constitutional values.

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