Gogoi’s term was marked by weak processes and inadequate reasoning. Justice suffered
Chief Justice Ranjan Gogoi retired on Sunday. The conversation this week will focus on his legacy. But amid the inevitable talk of Ayodhya, Rafale, Alok Verma, and the filling up of judicial vacancies, the manner in which the CJI and the SC responded to a woman who complained of sexual harassment cannot — and should not — be consigned to forgetfulness. The injustice of the event lingers, and it defines the tenure of the CJI at least as much as — if not more than — his landmark judgments.
But there is something more. The CJI’s — and the SC’s — response to the allegations exemplified a fundamental feature of the institution in the 13-odd months that CJI Gogoi was at its helm. In its seeming unconcern for natural justice, its opacity (a copy of the in-house committee’s report was never given to the complainant), and its desire to paint its critics as malicious individuals attempting to “malign” the institution, the court exhibited all the characteristics that we have long come to expect from the executive. It is this blurring of functions — between the executive and the court — that has characterised many of the flashpoints of Chief Justice Gogoi’s tenure.
This has been visible most starkly in the National Register of Citizens (NRC) case. Even before he became chief justice, Justice Gogoi took it upon himself to drive the Assam NRC to its completion. Thus, an immensely complex administrative and bureaucratic exercise — that would ultimately leave more than 1.9 million people on the cusp of statelessness — was imposed from above, to the extent that the suggestions of the elected government (often requesting for more time to ensure a more humane and accurate process) were overridden. Moreover, crucial decisions about the NRC — such as admissible documents and methods of proving citizenship — were either taken in closed-door meetings between the court and the NRC coordinator, or adjudicated through sealed covers. The rushed process, unsurprisingly, caused and continues to cause, significant chaos and suffering, to the extent that the respected international organisation, Genocide Watch, had to issue a warning just before the release of the final NRC list.
Sealed covers were an integral part of the NRC process — and they also made an appearance in other fraught cases heard by CJI Gogoi, such as Rafale and Alok Verma. On a regular basis, the SC asked for evidence in a sealed cover. The sealed cover, however, is antithetical to the concept of open justice. It is an old cliché that the legitimacy of the court is maintained “not by reason of its authority, but by authority of its reason”. It is impossible to know the reasons for the court’s judgments, unless the material on which those reasons are based is also accessible. In the absence of that material, the court’s judgments become little more than firmans — or rather, executive decrees, whose only logic is power.
This absence of reasons — and the blurring of judicial and executive functions — was also evident in a third set of cases. Soon after the abolition of Jammu and Kashmir’s special status, habeas corpus petitions were filed before the SC, challenging the detention of various individuals. Habeas corpus is one of the most ancient and precious individual rights against arbitrary State power. Courts around the world accord it utmost priority. In hearing these petitions, however, CJI Gogoi fashioned an unusual remedy. Instead of asking the State to justify the detentions, he gave the petitioners “permission” to travel to Jammu and Kashmir and “meet” the detained parties — on the condition that they would not do anything else in the state. But on what legal basis was the SC placing restrictions upon citizens’ constitutionally guaranteed rights to freedom of movement and freedom of expression, while refusing to even adjudicate upon the question of personal liberty? We did not know then, and we do not know now.
I began this essay by recounting the SC’S motto. Just above that motto, we can see the State emblem — the four lions of Ashoka. It reminds one of an old adage: Judges are supposed to be “lions under the throne”, ready at all times to check the ruler’s abuse of power. But long after the debate around his specific judgments is over, perhaps the most enduring legacy of CJI Gogoi will be that for an ordinary observer, it became no longer possible to tell the difference between the lions and the throne.
The views expressed are personal
Prasanta Patnaik