Why the SC Order Closing the Case on Conspiracy Against Ex CJI Ranjan Gogoi Is Disappointing

On Thursday (February 18), the Supreme Court’s three-judge bench has held, on the basis of the inquiry report which another bench had earlier commissioned, that the conspiracy against the former Chief Justice of India, and now Member of Parliament, Ranjan Gogoi – which allegedly led to sexual harassment allegations against him by a former employee of the Supreme Court, who has now been reinstated – could not be completely ruled out. The bench’s finding was like a blind man in a dark room looking for a black cat that wasn’t there.

Gogoi was well known for resorting to ‘sealed cover’ jurisprudence while on the bench. The term, ‘sealed cover’ jurisprudence, is a euphemism for unjustly denying an opportunity to a litigant to respond to claims of the opposite party – especially if the opposite party happens to be the Centre. Gogoi justified it on the ground that the government’s claims, with the permission of the court, could be submitted in a sealed cover, which would be opened and read only by the bench for its satisfaction, because they were deemed sensitive. Although the Supreme Court used to insist on submission of responses from a party in a sealed cover prior to Gogoi’s tenure too, it was he who frequently resorted to it while deciding cases, ignoring protests from litigants who found themselves at the receiving end.

Thursday’s order by a three-judge bench of the Supreme Court, comprising Justices Sanjay Kishan Kaul, A.S. Bopanna and V. Ramasubramanian, takes this sealed cover jurisprudence further by using it to give a clean chit to Gogoi.

At the outset, the bench records its appreciation that the report, submitted by retired Supreme Court judge Justice A.K. Patnaik, on the ‘larger conspiracy’ behind the allegations of sexual harassment against Gogoi, "is quite comprehensive, which has dealt with the scope of the enquiry, the materials and the findings and the conclusions along with the list of annexures and articles".

But the bench does not care to justify why it has had to keep such a comprehensive and useful report under wraps. The bench apparently assumes that the public is not mature enough to appreciate the report, and that its appreciation alone matters. Such a snobbish assumption is likely to strengthen the Supreme Court’s image as an ivory tower institution, far alienated from the concerns of the common man. This is unlikely to help the court redeem its image, which suffered quite an erosion in the aftermath of last year’s lockdown, when it didn’t come to the aid of the migrant workers, who were let down by the state’s insensitive approach to their concerns.

Also read: Sorry Mr Gogoi, We Need 'Constitutional Distancing', Not Court-Government Bonhomie

The order then refers to Justice Patnaik’s claim that he has confined his examination to only one aspect, that is, the veracity of the version put forward by Utsav Singh Bains, a lawyer. Bains gave an affidavit in court in a sealed cover. “It is to be kept in a sealed cover in total confidentiality, as it contains highly sensitive information pertaining to the alleged conspiracy, according to him, to frame Hon’ble the Chief Justice of India into a case of sexual harassment.  In that connection, he has stated to have met with certain persons at certain places,” the order issued by another three-judge bench on April 24, 2019 reads.

Bains was allowed to file another affidavit on April 25, 2019, which was also kept in a sealed cover. Justice Patnaik was appointed to hold an inquiry into the allegations made in the affidavits. “However, at the same time, we make it clear that this inquiry shall not be with respect to the alleged misbehaviour involving Hon’ble The Chief Justice of India. This is with respect to the contents of the affidavits, whether the affidavits are correct or not,” the bench comprising Justices Arun Mishra, Rohinton Fali Nariman and Deepak Gupta had said in its order on April 25, 2019.

Justice Patnaik’s report, according to the bench on Thursday, has opined that it is not possible to find corroborative material qua the allegations Bains made in the affidavit. The report has, according to the bench on Thursday, attributed its inability to find corroborative material to its limited investigative powers and access to records. Thursday’s order does not throw light on how the enquiry committee has been hampered by its limited investigative powers and access to records, and whether it sought the required powers to do justice to its mandate.

The report, according to the bench on Thursday, also acknowledges that the existence of a conspiracy cannot be completely ruled out and this has been so opined as Justice Patnaik has not been able to obtain various records including electronic records of WhatsApp, Telegram etc. One wonders how these two are linked. Inability to access electronic records is an admission of helplessness; it cannot lead one to conclude that a conspiracy can or cannot be completely ruled out on account of the inability. Therefore, if the Patnaik committee report indeed suggested that a conspiracy could not be completely ruled out, the opposite inference is indeed plausible: the absence of conspiracy too could not be completely ruled out. Therefore, when the bench on Thursday picked one sentence from the report to provide a clean chit to Gogoi, it appeared as though it was looking for a rationalisation to support its hypothesis, and to conclude all is well and nothing remained to be further probed.

The clean chit to Gogoi appeared to have been presented on a platter by the director of the Intelligence Bureau, in his letter dated July 5, 2019 to Justice Patnaik. In his letter, the director of the IB stated that on account of the then CJI taking serious tough decisions like in the case relating to the National Register of Citizens (NRC) in Assam, there was strong reason to believe that persons who were unhappy with those decisions hatched a conspiracy against the then CJI.

Also read: Ranjan Gogoi’s Defence is his Offence

A reference, according to the bench on Thursday, has also been made to certain tough administrative decisions taken to streamline the process in the registry. One would have thought that the IB would be capable of assisting an inquiry committee with more than just surmises and conjectures. Instead of reprimanding the IB for its shoddy assistance to the committee, the bench on Thursday appears to have lapped up its asinine observation – which could have been made by anyone not endowed with the resources which the IB has – as proof of Gogoi’s innocence.

The previous bench’s order on April 24, 2019 noted thus: “We requested the Director of Central Bureau of Investigation (CBI), the Director of Intelligence Bureau (IB) and the Commissioner of Police, Delhi, to report to this Court and requested them to seize the relevant material in order to support the contents of the affidavit furnished by the officer of the Court, Mr.Utsav Singh Bains, Advocate.”

Thursday’s order makes one wonder whether the CBI, IB and the Delhi Police were guilty of non-compliance with the previous bench’s order.

Bains, according to the Arun Mishra bench in 2019, had mentioned in the affidavit that the disgruntled employees had ganged together in order to frame Gogoi in the false charge of sexual harassment after their dismissal from services.  Bains had named in particular Tapan Kumar Chakraborty, Manav Sharma and others.

The Arun Mishra bench breached the confidentiality of Bains’ affidavit to name the former employees, who were dismissed, to implicate them in the conspiracy. Bains had also given certain other names and alleged that they had asserted that they could fix the bench of the judges. The Arun Mishra bench had observed: “Considering the seriousness of the allegations as the system has absolutely no place for such fixers, we cannot leave the matter at that.  It becomes our responsibility to keep this institution clean as well as to ensure that the image of this institution is not tarnished by such allegations to undertake the probe in the matter.”

Alas, the Arun Mishra bench’s determination to get to the bottom of Bains’ allegations in his affidavit seems to have dissipated within two years. “We are also of the view that two years having passed and the possibility of recovery of electronic records at this distance of time is remote, especially since the scope of the enquiry and the power of the learned Judge is limited, no useful purpose will be served by continuing these proceedings,” the new bench on Thursday noted.

One has to read between the lines to understand the new bench’s anguish on Thursday. First, the bench rued the fact that two years have passed after the so-called disclosure of conspiracy. Had the bench examined the reasons for this inordinate delay, it would have found that the previous bench had to share the blame to some extent. That bench, knowing well that the scope of the enquiry and the powers of Justice Patnaik were limited, should have realised that the object of the enquiry could not be achieved.

Also read: Judicial Independence: Three Developments that Tell Us Fair is Foul and Foul is Fair

Second, the previous bench, for inexplicable reasons, did not hear the case or read the report despite Justice Patnaik submitting his report on September 19, 2019. The bench on Thursday opened the sealed cover carrying Patnaik’s report for the first time, and after reading it, promptly put it back in the sealed cover again, as if its contents were not of any concern to the public at large. Therefore, the court may well introspect whether it had to blame itself for causing this inordinate delay, which in its view, made it impossible to act on it, and unravel the possible conspiracy behind the allegations against Gogoi.

Or was the delay a blessing in disguise because the court could now justifiably bring down the curtains on Gogoi’s alleged misconduct, citing as reasons the limited scope of the enquiry and the powers of the inquiring judge? No one needed to be blamed, including Gogoi, who would have felt a huge sigh of relief at the outcome. Justice Patnaik perhaps must have wondered whether the court used his report and the labour which went into it to provide clean chit to Gogoi by concluding that a conspiracy could not be ruled out.

The purpose of the enquiry by Justice Patnaik was not to determine whether there was a conspiracy by Gogoi’s adversaries within and outside the Supreme Court. Instead, it was limited to finding out whether Bains’ statements in his affidavit were true or not. The Arun Mishra bench had specifically rejected Bains’ claim of privilege as a lawyer to justify non-disclosure of information in his possession. Thursday’s order is silent on whether Bains disclosed the information which he claimed to have in his possession to prove the conspiracy against Gogoi. If he didn’t have the information which could be relied upon by the inquiry committee, could it be said his affidavit was correct?

The Arun Mishra bench had this to say about Bains: “…This is a very serious aspect of the affidavit filed by Mr.Utsav Sing Bains, a young man whose entire career is before him. He knows the consequences of filing false affidavit in this court.”

Thursday’s order raises the question of whether a specific allegation about bench-fixing by certain named individuals, in an affidavit filed by an advocate, could be ignored, and the advocate given the benefit of doubt, simply because the enquiry committee set up to probe the matter was later found to be lacking the powers to unravel the truth.

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