By Gautam Bhatia

There is much to write about today. But this post will follow precedent (unlike some of the major judgments delivered during the ex-Chief Justice’s tenure) and – like last year – focus on the law. I will not, therefore, discuss the sexual harassment allegations of April/May 2019, although they constitute an important part of the ex-Chief Justice’s legacy (discussed here, here, here, here, and here). I will not discuss the opacity of the Collegium or what was done to Justice Akil Kureshi, where a judge seemingly not considered “fit” to be Chief Justice of the Madhya Pradesh High Court was re-assigned to the Tripura High Court (see here). I will not discuss the time that the ex-Chief Justice told the lawyers of a man who had been jailed for satirical speech that “jail is the safest place for you“; or the time that he told the lawyers of a woman asking for her Article 19(1)(d) rights that “Srinagar is a cold place, why do you want to move around?” What these remarks say about the ex-Chief Justice’s attitude towards constitutional rights can be left to individual judgment. I will not discuss the prioritisation of cases – how, ostensibly, a “land dispute” was somehow heard by a Constitution Bench of five judges and fast-tracked, while civil rights claims connected to the lock-down in Kashmir went unheard because a Court of thirty-three judges – according to the ex-Chief Justice – “had no time.” And I will not discuss the problematic manner in which the ex-Chief Justice, while still the Chief Justice, defended his NRC orders in a public event, in the interests of “development.”

Interested readers can consult this piece, which discusses some of these issues in detail, and what they mean both for the ex-Chief Justice’s legacy and for the institutional credibility of the Supreme Court. Here, I will consider some of the important judgments and orders delivered by the ex-Chief Justice, during his tenure. My assessment will be simple: ex-Chief Justice Gogoi oversaw a drift from a Rights Court to an Executive Court. That is, under his tenure, the Supreme Court has gone from an institution that – for all its patchy history – was at least formally committed to the protection of individual rights as its primary task, to an institution that speaks the language of the executive, and has become indistinguishable from the executive. The “Executive Court” is visible in the ex-Chief Justice’s substantive adjudication [e.g., the NRC case and the Voice Samples case], in his penchant for procedural opacity [e.g., sealed covers], in his contempt for the Evidence Act [e.g., Rafale], in his treatment of fundamental rights as charity rather than entitlements [habeas corpus petitions], and in his judicial rhetoric.

THE NRC CASE

The starting point of any discussion about the ex-Chief Justice has to be the urgent – almost messianic – manner in which he drove the NRC process (even from before the time he became Chief Justice). Recall that the National Register of Citizens is a state-wide administrative process in Assam, aimed at creating a list of Indian citizens. The creation of the National Register of Citizens flows from – and is linked to – the Assam Accord, and subsequent amendments to the Citizenship Act. As indicated above, the NRC was always meant to be an administrative process – implemented by the government and executed by the bureaucracy. In 2014, however, acting under expansive PIL powers, the ex-Chief Justice – sitting with Nariman J. – effectively took over the entire process. Formally, it was Supreme Court “oversight” over the preparation of the NRC; effectively – as soon became evident – there was little difference between “oversight” and “control”.

Why was this a problem? I have discussed some of the issues in detail (see here, here, here, and here), and here I will summarise them. The NRC process wasn’t just any ordinary administrative process. It affected citizenship – the underlying basis of all other rights, the right to have rights. While the NRC itself would not deprive an individual of citizenship, exclusion from that list would severely prejudice people’s cases before the Foreigners Tribunals, which they would subsequently be hauled up before. Now with consequences as serious as this, one would expect the full panoply of constitutional safeguards to apply, with heightened rigour. And under our constitutional scheme, one of the most crucial safeguards is the separation of powers and judicial review. The executive implements policy, and if – in the process – it violates individual rights, the courts exist to test executive action on the touchstone of the Constitution.

The Supreme Court’s takeover of the NRC process effectively amounted to taking a knife and slashing right through this constitutional fabric. In consultation with the State Coordinator, it was the Court that was determining how the process was to be conducted, what the deadlines were, what documents were admissible, and so on. And because the Court had taken over the Executive’s task, there was no place where aggrieved people could go, if they felt that their rights were being violated; after all, whom do you appeal to from an order of the Court, apart from the Court itself?

This is not an abstract, theoretical concern. To take just one example: the use of the “family tree” method to determine citizenship was found to disproportionately disadvantage rural women, who had greater difficulty in accessing – and producing – the documents that it required. In an ordinary situation – that is, if this had been pure executive action – this could have been challenged before the courts on grounds of Articles 14 and 15, and struck down. But because the modalities of the NRC themselves arose from (often closed-doors) consultations between the Supreme Court and the NRC Coordinator, that entire set of remedies was blocked off. Examples of this kind abound; the situation, in effect, was like the poem from Alice in Wonderland: “I’ll be judge, I’ll be jury”/ said cunning old Fury:/ “I’ll try the whole cause,/and sentence you to death.“

“Death” is not a euphemism here. People died because of the NRC. People died when the Court insisted on unachievable deadlines for publishing draft NRCs (to the extent that even the State – the actual Executive – asked for more time, and was denied). People died at the time of the publication of the final list, another accelerated process in which the government’s requests for an extension were shot down. Things came to stage where Genocide Watch issued a warning around the time of the final List – a rare time in history where judicial actions in a functioning democracy have led to a genocide warning. In another world, this would be a moment where a constitutional Court would be asked to step in and protect rights; but a world where the Court had become the perpetrator was a world long turned upside-down.

The problems were not limited to the ex-Chief Justice’s substantive role in the NRC process. The problems extended to process; they featured opaque proceedings where affected parties were not heard, and decisions were taken on the basis of “power point presentations” made by the State Coordinator to the Court. And they were taken on the basis of evidence in sealed covers – a point that brings us to our next issue.

SEALED COVERS

Right from the beginning, the ex-Chief Justice’s tenure was marked by secrecy, opacity, and the ubiquitous use of “sealed covers” (see here, here, and here). The NRC case was marked by sealed covers. The Rafale dispute was marked by sealed covers. The Alok Verma litigation was marked by sealed covers. Sealed covers popped up in the one hearing that happened on the issue of electoral bonds, and they popped up – bizarrely – in the litigation around the Prime Minister’s biopic before the election.

I will, again, sum up an argument that I have made in detail in the posts above. 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. If I do not know why the Court has come to the conclusion it has, I simply cannot make up my own mind about the merits of what it has done. In such a situation, the Courts become little more than petty autocrats: their judgments are upheld only by virtue of their institutional power, and not on the strength of their reasoning. That is not how democracy works.

 

The ex-Chief Justice’s penchant for sealed covers suggests another way in which the Supreme Court has transitioned to the Executive Court. Secrecy is the hallmark of the executive: we all acknowledge that there are certain kinds of executive action that cannot be disclosed, as that would defeat the entire purpose: war plans, for example, or complex trade negotiations. The crucial distinction, however, is that whereas executive legitimacy for these actions comes from popular elections, judicial legitimacy comes from open and public reason-giving. Apart from certain exceptional situations, therefore (such as two corporations litigating over commercially sensitive information, or where other rights are at stake, such as the privacy of sexual assault survivors), the Court simply cannot justify withholding information in sealed covers – and certainly not in public law cases involving fundamental rights – as that defeats the very purpose of having an independent judiciary in a democratic system. As I have argued earlier, if the Court feels that certain information is sensitive because it pertains to national security, then the answer is for it to decline to hear the case at all (insofar as it pertains to that information), on the basis that it is not institutionally legitimate to intervene. But the Court cannot have it both ways (as it did in Rafale): it cannot both hear the case, but also hear it on the basis of secret material, and then pass judgment based on that secret material, so that nobody is in a position to understand or examine what it has done. That behaviour is more reminiscent of the Star Chamber.

 

And it is important to note that what the Supreme Court does has ripple effects throughout the entire legal system. On more than one occasion in the last few months, for example, the Delhi High Court has upheld bans on organisations on the basis of evidence in sealed covers, which even the organisation’s lawyers were not allowed to see. In other words, people have been deprived of their fundamental rights to assembly and association on the basis of evidence that they could not see and could not contest. It is difficult to see how this kind of kangaroo-Court behaviour could have gone on, had not the sealed cover practice received the direct behaviour of the ex-Chief Justice.

CONTEMPT FOR THE EVIDENCE ACT

If “sealed covers” represented one significant departure from the judicial process and towards executive process, the ex-Chief Justice’s bizarre approach to evidence in the Rafale case represented another (see here). During the hearing of the PIL petitions challenging the Rafale deal, the ex-Chief Justice “summoned” Air Force officials to Court to “interact” with them. It was then reported that the bench had an “oral” interaction with the Air Force officials, questioning them and hearing their answers.

But this doesn’t just take a knife to the Evidence Act, it takes a lighter and sets fire to it. One of the cornerstones of our legal system is the adversarial process: truth emerges out of a contest between rival views and competing evidence, and the foundation of that contest lies in procedures such as cross-examination. Ordinarily, it is only after the other side has had a chance to put testimony to the test, through cross-examination, that it can be given the status of “evidence”, and can be relied upon by the courts. And the procedure through which this happens is set out in detail in the Evidence Act.

Once again, therefore, the ex-Chief Justice acted as if the obligations that apply to legal proceedings – to clearly follow the law, and to provide legal explanations if one is departing from ordinary process – simply didn’t exist for him. Laws and processes were for lesser mortals – and lesser judges, presumably; the ex-Chief Justice, however, could simply call people to his Court, “interact” with them, and that would become “evidence.” We may call this “Humpty Dumpty jurisprudence”:

Which, of course, is reminiscent of an imperial Executive, and not a constitutional Court bound by the rule of law.

HABEAS CORPUS

After the events of the 5th of August in the State of Jammu and Kashmir (that have been discussed extensively on this blog), a clutch of petitions were filed in the Supreme Court. One set of petitions involved claims to habeas corpus: relatives and friends of individuals in Kashmir claimed that they had been unlawfully detained, and requested the Court to intervene.

 

Habeas corpus is a simple thing. No really, it is. It literally means “produce the body.” All the Court has to do is to ask the government to bring the detained person, and legally justify the detention. And habeas corpus – as just about everyone agrees – is one of the most foundational rights that individuals have against arbitrary State power.

 

What did the ex-Chief Justice do when these habeas corpus petitions came before him? Let us take the case of J&K MLA Yusuf Tarigami. His party chief, Sitaram Yechury, filed a habeas corpus for Tarigami to be produced, and his detention explained. After hearing the petition, the ex-Chief Justice “allowed” Yechury to “travel” to J&K to “meet” Tarigami, and then “report back” to the Court – on the condition that he could only travel for this purpose, and could not engage in any “political activities” while there.

 

Where does one even begin with the extraordinary perversity of all of this? Article 19(1)(d) guarantees to all citizens the freedom of movement within the territory of India. J&K is a part of India (is it not?). Yechury is an Indian citizen (is he not?). There was no Emergency declared in J&K, so Article 19(1)(d) had not been suspended (in fact, the government to this day insists that everything is “normal”). If at all Yechury’s movements could be restricted, it could only be on the basis of a “law” that met the test of reasonableness under Article 19(4). So where on earth did the Supreme Court get the idea that it had any power or authority to “allow” Yechury to travel to J&K, and place “conditions” on what he could or could not do when he was there? Where in the Constitution were these “conditions” sourced from? Was the ex-Chief Justice the head of the Supreme Court or the head of the Supreme Internal Visa Issuing Authority of India? And what happened to the right to habeas corpus? Had it been erased from Article 21 by this newly-minted Supreme Internal Visa Issuing Authority of India? As A.G. Noorani would point out a few weeks later, “the Gogoi court has, at reckless speed, run a coach and four through the centuries-old established law on habeas corpus.”

Needless to say, the ex-Chief Justice refused to provide any reasons for any of this. No reasons for what was done to habeas corpus, no reason for the extraordinary order that made fundamental rights subservient to the whims and fancies of the Court without even an effort to locate them in the Constitution, no reason for anything. This was a Court – and a Chief Justice – that had liberated itself from that annoying little thing called the Constitution. Aut Caesar, aut nihil.

JUDICIAL EVASION AND ELECTORAL DEMOCRACY

For a Chief Justice that was willing to sit five days a week and after court hours to ensure that the Ayodhya case was decided, the ex-Chief Justice showed a surprising degree of reticence when it came to cases that go to the heart of our electoral democracy. At the head of the queue was the electoral bonds challenge. Recall that the electoral bonds law allows for limitless, anonymous corporate donations to political parties (see here). A challenge to the law has been pending from before the ex-Chief Justice became the Chief Justice, and has remained pending for the entire thirteen months of his tenure; during this time, multiple elections have taken place, and multiple cycles of electoral bond-buying has happened (for the staggering figures – all anonymous – see here: 6128 crores, out of which a majority has gone to the ruling party, because of the structural asymmetry within the scheme that benefits the ruling incumbent – whoever that might be).

When the case came up for hearing before the Lok Sabha elections, the Chief Justice after hearing it for a while, noted that the “weighty issues … would require an in-depth hearing which cannot be concluded and the issues answered within the limited time that is available before the process of funding through the Electoral Bonds comes to a closure.” He then ordered that the details of the funding be given to the Election Commission in a sealed cover (again!), and by 30th May.

There is only one way to describe this order: judicial trolling. At this point, the case had been pending for over a year. To say that there was “limited time” to hear and decide it somehow implied that the petitioners had been sleeping all this while, and had only run to the Court on the eve of the Lok Sabha elections. And besides, as the Brexit hearing recently showed us, if a Constitutional Court really needs to hear and decide a crucial case within a limited period of time, it is perfectly capable of doing so – and writing a reasoned judgment to boot.

What, then, was the aftermath? 30th May came and went. Presumably, details were filed in a sealed cover. And the case has sunk without a trace. Another set of state elections have come and gone, in which electoral bonds were used – and the Court is yet to hear it. This is, as I have pointed out before, classic “judicial evasion”: the Court effectively decides a case by not deciding it, because the status quo so obviously favours one party (most times, the government) (see here and here).

SLOUCHING TOWARDS THE EXECUTIVE: THE VOICE SAMPLES CASE

This post would be incomplete before highlighting one final – extraordinary – judgment of the ex-Chief Justice (no, not Ayodhya). In August, the ex-Chief Justice headed a bench that found that the mandatory taking of voice samples during interrogation of accused persons was not covered by any statute. Now, this should have been the end of the matter: if there’s no statutory authority for taking voice samples – a process that undeniably infringes the right to privacy at the threshold (whether it is a justified infringement is another matter) – then voice samples can’t be taken. Simple. The legislature has to amend the CrPC to allow it, and the amendment can be tested before the courts on constitutional grounds.

 

The ex-Chief Justice, however, invoked Article 142 of the Constitution to judicially authorise the mandatory taking of voice samples. As I pointed out at the time, this was utterly flawed and profoundly dangerous (see here). Because once again, the Court was running roughshod over the most basic structural principles of the Constitution: instead of the normal route where laws are passed that prima facie infringe rights, and then are tested before the Courts, the Court was itself legitimising a rights-infringing procedure before even it had been legislated, or even argued on merits before it! And this indeed was the apotheosis of the Executive Court: judging a case, making law, and implementing it, all at once, in service of an amorphous public interest that remains forever undefined.

CONCLUSION: AT THE CROSSROADS

I have not, in this post, examined the Constitution Bench cases that have been delivered this week (although I have analysed them in separate blog posts). The RTI and the Tribunals judgments are regular judgments, analysed under regular legal frameworks. If this was all that the ex-Chief Justice’s tenure consisted of, then there would have been no need to write this post today.

 

Nor have I analysed the odd “review” judgment in the Sabarimala Case, judicial evasion and the strange final order in the Alok Verma case (see here), or the “balanced” order that never was in the Karnataka MLAs’ defection case (see here). These are issues that will probably occupy political scientists in the years to come. This post, on the other hand, has attempted to show that the dominant tone of the ex-Chief Justice’s tenure has been marked by a series of extraordinary judgments that fall within a coherent pattern: the rise and rise of the Executive Court.

I should be clear that this is not an issue pertaining solely to the ex-Chief Justice. It is not just Court No. 1 on Bhagwan Das Road that does this; the issue is a structural one, affecting courts across the board (see here). This has been accompanied by the Courts resiling from core functions such as policing the bounds of electoral democracy. Electoral bonds is the most glaring example, but the rejection of totaliser machines (that guarantee voter anonymity and protect the secret ballot) and the VVPAT issue are others (see here).

But it is important to focus on the ex-Chief Justice and his Court, for two reasons. First, as I have indicated, there is a ripple effect that flows from what the Supreme Court does – especially in high-profile cases that invariably end up in Court No. 1 – to other courts. And secondly, as the above analysis should demonstrate, in the ex-Chief Justice’s tenure, the Executive Court has come to the fore in a particularly concentrated form: taking over large-scale administrative exercises, sealed covers, undermining of evidentiary rules, disregard of constitutional rights, the abuse of Article 142 – all of this, and more, has defined the last thirteen months.

This leads to two conclusions. The first concerns those who study, write, and speak about the Supreme Court. For many years, there has been an established model to study constitutional courts in democratic republics (especially courts vested with the power of judicial review): as counter-majoritarian institutions (that may sometimes succeed but often fail to check majoritarian impulses), as (imperfect but important) protectors of rights, and as institutions that, at the end of the day, are built on a process of open and public reasoning and deliberations. Under the ex-Chief Justice, though, I would suggest that the Court has departed so far from these fundamental principles, that it is unrecognisable as a “Court” under the classical model. To continue to act as if it was, then, would be to make a category mistake. And this is why I have used the term “Executive Court”: the trappings remain, but the substance is radically different.

The second, of course, concerns the Court itself. We stand at a crossroads, and there is a clear choice that faces the Court. It may keep walking down the road it has chosen in recent times (and there is a continuity between the tenure of the last-but-one Chief Justice and that of the ex-Chief Justice, but that is a discussion for another day). It may carry on with the disastrous management of the NRC, continue with sealed covers, keep acting as if habeas corpus is a weird Latin term with no relevance to India in 2019, keep evading crucial constitutional cases where status quo benefits the government, and double down on Article 142. It may keep doing that, and soon there will be little left to call a “Court” in a true sense.

Or, it may remember once again Patanjali Sastri J.’s words – back in the days when the government actually lost some constitutional cases when it mattered – that the role of the Court is that of “a sentinel on the qui vive.” It may recall Justice Khanna’s admonition, that “the history of personal liberty is largely the history of insistence upon procedure.” And it may recover its classic role as the counter-majoritarian institution that stands between the individual and unaccountable, arbitrary State power.

The choice has never been clearer. And the jury, as they say, is out.