‘His Eminence’ Ranjan Gogoi and a legacy of deliberate omissions and commissions

“His Eminence” is not the sobriquet that Ranjan Gogoi, the retired Chief Justice of India, will be greeted with in public life. Not after he’s been nominated to the Rajya Sabha by President Ram Nath Kovind as one of 12 eminent personalities the president can choose as per the advice of the government — picked for excellence in their fields and contribution to public life.

Instead, in a first embarrassing incident perhaps, it was boos and jeers of “shame, shame” that welcomed Gogoi as he walked into the hallowed hall of the Rajya Sabha to take his oath.

Worse was to come. Opposition members walked out of the House and boycotted the swearing-in amidst cries of a deal between the former CJI and the Narendra Modi government. It was an unfazed Gogoi who remarked soon after his oath-taking that his parliamentarian colleagues “will welcome me very soon”. The nomination came barely four months after his retirement in November 2019.

The 66-year-old Ranjan Gogoi has been in the eye of a national storm ever since he took over as the 46th CJI in October 2018. He served for 13 months until his term ended in November 2019.

His appointment as CJI came as a surprise as he was part of a group of four Supreme Court judges — the other three being Jasti Chelameswar, Madan Lokur, and Kurian Joseph — who, in a shock move, held a press conference in January 2018. During the press conference, the four judges alleged problems in the judicial system, foul play in allocating sensitive cases to particular judges, undesirable events in the administration, unwarranted interference, and warned of the dangers to the country’s democratic institutions.

The immediate provocation was the contentious allocation of the case looking into the death of Judge Loya (who was hearing the 2004 Sohrabuddin Sheikh murder case, where home minister Amit Shah was one of the accused). It was the first time judges of the Supreme Court had come out to vent their grievances but, as they said at the time, “This is an extraordinary event in the history of a nation...and judiciary...It is with no pleasure that we are compelled to call this press conference.”

Gogoi took over from Justice Dipak Misra, who was the target of the press conference without being named. But in a stunning turnaround, Gogoi went all out to do exactly the opposite of what he and his colleagues had protested against earlier — from the prioritisation of cases to constitutional evasion and cherrypicking judges for a favourable outcome for the Modi government. So much so that his tenure was marked by deliberate omissions and commissions.

Take a look at the list of cases that Gogoi eminently discharged, amidst an outcry of distortion and fraudulence:

Rafale deal

In September 2018, the Supreme Court agreed to hear a public interest writ petition filed by advocate Prashant Bhushan and former Bharatiya Janata Party ministers Yashwant Sinha and Arun Shourie. The petition pleaded for the cancellation of the Rs 58,000 crore order to buy Rafale jets, signed between Modi and the French government amidst allegations of overpricing, corruption, bribery, and favouritism to Anil Ambani’s defence company.

In a stunning order, Gogoi asked the Modi government to provide the pricing details of the Rafale order in a sealed envelope. Even as the Modi government refused to divulge details to Parliament, quoting a confidentiality clause that shouldn’t have been there in the first place, Gogoi played along, refusing to reveal the details to the petitioners.

In December, Gogoi promptly dismissed the petition seeking a probe into the alleged irregularities in the multi-billion dollar deal, and gave the Modi government a clean chit, saying his bench was satisfied there were no discrepancies in the pricing, or any wrongdoing in the allocation of offset business to Anil Ambani.

However, Justice KM Joseph — who was also a member of the three-judge bench that looked into the petition — said in a separate judgement that the verdict should not stand in the way if the Central Bureau of Investigation acted on the petitioner’s complaint.

Sexual harassment case

In April 2019, Gogoi was hit with a sexual harassment case by a junior court assistant, when she sent affidavits to 22 Supreme Court judges calling for an enquiry, not just into her harassment but her subsequent victimisation where she and other members of her family lost their government jobs. She also claimed that criminal cases were reportedly filed against her family.

Stunningly, in the sexual harassment case, Gogoi constituted a bench to look into the allegations but presided over it, basically hearing allegations against himself! Then another three-judge bench was appointed which looked into the matter of the motives of the complainant.

The institutional failure of the Supreme Court continued when it set up an ad-hoc in house committee to hear the assistant’s allegations. This committee did not follow prescribed norms, to the extent that the complainant withdrew from the proceedings. The committee, of course, gave Gogoi a clean chit.

Only Justice J Chandrachud objected to the process that had triggered an outcry from women’s groups and civil society. It must also be said that the in house committee was chaired by Justice A Bobde, who succeeded Gogoi as CJI.

Sealed covers

Gogoi’s penchant for sealed covers simply goes against the principle of open justice. As lawyer Gautam Bhatia so eloquently said:

“Sealed covers are the absolute antithesis of open justice, one of the fundamental principles underlying the judicial system. The reason for this is simple: courts have to give reasons for their judgments. Citizens are entitled to assess the strength of these reasons, as part of the framework of democratic accountability over courts. If, however, the evidence on the basis of which judgments are delivered is kept hidden, then any kind of scrutiny is nothing more than whistling in the dark...That is not how democracy works.”

Gogoi asked for sealed covers in the Rafale deal; and in the very public battle between outgoing CBI chief Alok Verma, who had raised corruption charges against Modi government favourite Rakesh Asthana, where the latter got his posting from the government. He directed all political parties to furnish receipts of electoral bonds and details of identity of donors in a sealed cover to the Election Commission on the eve of the general election in May 2019, even though an NGO had challenged the validity of the scheme and demanded that either the scheme be scrapped or the donors be made public to ensure transparency in the poll process.

So conscientious was Gogoi that he even asked the Election Commission to watch the full biopic on Modi which it had banned in the run-up to the elections, and asked the panel to submit its decision to the court in a sealed envelope yet again.

Ayodhya dispute

Barely 10 days before he had to retire, Gogoi delivered the most contentious and awaited judgement on the ownership of the 2.77 acres of disputed land in the Ram Janmabhoomi-Babri Masjid case.

Gogoi had constituted a marathon 40-day hearing which would decide who the land would go to: the deity Ram Lalla, Nirmohi Akhara, or the Sunni Waqf Board. The hearing began on August 6, 2019, and was wrapped up on October 16.

Gogoi’s bench went in favor of Ram Lalla, and he directed that a five-acre plot be given to Muslims elsewhere to build the mosque. The judgement was based on the findings of the Archaeological Survey of India which claimed, though challenged, the existence of a Ram temple. Gogoi also gave the Modi government the privilege of setting up a trust to build the temple.

Kashmir and habeas corpus

The Ayodhya dispute might have received a 40-day hearing, but Gogoi simply refused to intervene when habeas corpus petitions were filed in his court at the same time when the Modi government locked down the valley of Kashmir on August 5, 2019. Here, mass detentions were carried out and the valley closed to outsiders.

Relatives of those unlawfully detained appealed to the Supreme Court, but Gogoi set so many conditions for the petitioners to produce the people detained that it went against the very purpose of the habeas corpus petition.

National Register of Citizens

It is Gogoi’s unstinted support to the NRC that has given the process a legitimacy that can be challenged only in court, even though it should have been an executive order from the government and the local administration.

As the son of a former chief minister of Assam and a staunch nationalist Assamese, Gogoi has taken over the issue with messianic zeal. Effectively, since the court has taken over the administrative guidelines, deadlines, documents and the entire process to establish citizenship, who does the citizen turn to if his individual rights have been violated?

Gogoi even warned that people who raised objections to the NRC process are “playing with fire”, hinting at Opposition parties and civil society who have been holding protests against NRC and its off-shoot, the Citizenship Amendment Act.