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A Plea for Justice?

The former CJI is no stranger to controversy. His controversial autobiography has again put the spotlight on him. APN news channel did an in depth-discussion on the memoir row. The show was moderated by the channel’s Editor-in-Chief Rajshri Rai.

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By Sanjay Raman Sinha 

When a former chief justice of India (CJI) demands justice and presents his side of the story by writing an autobiography, questions are raised about the judicial community and judges.

Recently, when the autobiography of former CJI and current Rajya Sabha member Justice Ranjan Gogoi was released, it generated many headlines and controversies. The title of the book itself was controversial: Justice for the Judge. Ironically, the book seeks justice for the judge and is not justice by the judge. The 250-page memoir is an attempt by Justice Gogoi to save his public image, legacy and reputation.

Inderjit Badhwar, Editor-in-Chief of India Legal magazine, said during the show:

“Justice Gogoi had been quite a controversial judge. This book has again put the spotlight on him. Before his retirement in October, 12 some of his judgments came under criticism. After his retirement, he continued to be criticised, especially regarding his acceptance of the Rajya Sabha seat. There was a general impression that he gave pro-government judgments and he was rewarded for it. During the tenures of Indira Gandhi and Rajiv Gandhi, judges used to meet the politicians in power. Then law minister Hansraj Bhardwaj used to openly meet judges. That was the pre-collegium era. The lawyers of Mrs Gandhi, Sanjay and Rajiv Gandhi used to meet the judges and talk about political cases. This phenomenon of influencing judges is not new. But many judges resisted this intrusion in the judiciary. Before the collegium system, the reins of transfer of judges were firmly in the hands of the party in power. By writing this book, I think he is trying to absolve himself of allegations and clear the air on controversies. But personally, I feel that he has written the book a bit early. He should have waited or not written the book at all. Even now, with the interviews he has given, the controversies have got a new lease of life. Note his comment on his Rajya Sabha attendance. That has brought about a privilege motion against him.”

Often, judges feel helpless in the face of criticism. They can’t hold press conferences and put forth their points of view. These were the thoughts of Justice NV Ramana during the hearing of a pollution case.

As Justice Gogoi himself said, initially he had thought of naming the book Justice for Judges, but he subsequently changed that. Can it be construed that the fight for his brother judges got compromised for his own cause alone?

Justice BA Khan, former chief justice of the Jammu and Kashmir High Court, said:

This is significant since judges can’t defend themselves. So a defence for brother judges is called for. This is the rationale behind the book. He has faced lots of criticism during his career. To reply to all the charges, he may have written the book. However, there is no denying the fact that Justice Gogoi has taken certain decisions which are beyond judicial impropriety. One relates to his sitting as a judge in his own case of alleged sexual misconduct. The proceedings were in camera and the press was instructed to avoid the coverage. One cannot be a judge of one’s own cause. An accused can’t be his own judge.

Never has it happened in judicial history. Though he has regretted his move to be part of the bench, the act has been done. He can’t absolve himself of it now.’’

After delivering a unanimous verdict in the Ram Janmabhoomi Babri Masjid case on November 9, 2019, Gogoi, who was the CJI, took colleagues who were part of the bench for dinner to a five-star hotel. The book also has a photo of the five judges arm-in-arm. The word “celebration” is used. This has created a veritable controversy. Can judges celebrate a decision? By narrating this fact, has not Justice Gogoi made his fellow judges also complicit and susceptible to allegations and distrust? 

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Justice Bhanwar Singh, former judge of the Allahabad High Court, said:

“I have gone through the book. The word celebration is there. I concur that a judge shouldn’t celebrate a judgment. Having said that, I must add that if Justice Gogoi has said that the party was not a celebration and was indulged in just to release the tension, then there is no harm in accepting his explanation. I have seen his interview on another channel. The anchor had questioned him without giving any consideration to the fact that he is interviewing a former CJI. Justice Gogoi did say that judges are not made in heaven, but he never accepted doing any wrong. He said that he had gone partying with other judges just to relieve tension and relax. We should accept his explanation.”

However, Justice Khan countered:

“What was the reason for throwing a party and indulging in ‘celebration’ post the Ayodhya verdict? Is there mourning among the judges after giving a death sentence? Is there a celebration after a momentous positive judgment? Why this partying after the Ayodhya verdict? Why this joining of arms pose of the judges? He is saying in the book that it is a celebration. Later, in one interview, he said that it was not a celebration but a way to release tension and fatigue. What kind of impression has this created? It has cast a shadow on other judges also. In our adversarial system where two parties are pitted against one another, if the judges of the case celebrate a judgment, won’t the other party feel that they have been cheated; won’t they feel that the judges were biased?” 

In the interviews that followed the book, Justice Gogoi has maintained: “Corruption has become an accepted way of life and judges don’t drop from heaven.” The question arises that if there was corruption in the judiciary, why didn’t Justice Gogoi take action against corrupt judges. It is a fact that he came to the topmost post as a rebel judge. Also, by accepting the fact that corruption exists in the judiciary, he has created distrust for the institution amongst the populace. 

Justice Bhanwar Singh said: “It is an accepted fact that there is corruption. But to initiate proceedings against someone is difficult because it needs evidence, which may not be forthcoming. The allegations need to be substantiated by way of evidence, failing which it may amount to contempt. Talking of the specific Ayodhya judgement, it is a judgment of all the five judges. Though it may be a tradition to sign ‘I concur’ at the end of the judgment, it is not mandatory, and it is not mentioned in the Constitution either. The majority judgement prevails.”

Justice Khan added:

“I am not surprised at Justice Gogoi’s comments. It can be looked at as someone who is courageous who calls spade a spade. If Justice Gogoi knew of corruption among judges, he should have acted. I think we have become immune to corrupt practices.”

The book launch function was graced by four Supreme Court judges and NCLT Chairman Justice Ashok Bhushan. One invitee whose presence raised eyebrows was industrialist Gautam Adani. It was not too long ago that senior advocate Dushyant Dave had complained in the court of Justice Gogoi that cases related to Adani were listed all too frequently. Now Adani’s proximity have made the whispers stronger.

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However, the controversy over celebrations has raised the issue of a hermit judge once again. In the Supreme Court, cases like the High Court of Judicature for Rajasthan vs Ramesh Chandra Paliwal, and Daya Shankar vs High Court of Allahabad, importance was given to the fact that judges have to live and behave like hermits. But it is too much to expect from them. What we should expect from them is impartiality and unsullied objectivity.

Badhwar said:

“Judges are human. They enjoy a social life. They like to go out in evening and have a drink with friends. They go to clubs and sit with their friends and enjoy. But to say that judges were celebrating is a wrong way to describe the get-together. After giving death sentences, the judges break their pen. When culprits of heinous crimes are given death sentences, like in the assassination case of Mrs Gandhi, the judges were sombre. It’s highly insensitive to dub such a get-together as a celebration. People’s emotions are associated with cases, be it Ayodhya or Article 370 or for that matter any other case. A judge shouldn’t hurt the emotions of people by his actions or words. A judge is supposed to do justice and not boast about it or celebrate it.’’

In the Supreme Court, even before his elevation to the post of CJI, Justice Gogoi had earned the tag of a rebel. With four other judges, he had raised issues which were a taboo till then. He had questioned the alleged malfunctioning of the judicial machinery, lack of transparency and inherent conflicts.

Badhwar continued: “Just look at the contradiction. In the famous press conference of January 2018, he and Justice Jasti Chelameswar among others alleged that democracy was in danger. It was Justice Gogoi who said of Ramnath Goenka—he was someone who could call a spade a spade. Someone who could speak the truth to power even if it came at a cost. To be ready to break, but not bend could be called obstinacy by some but determination by others. Is it a matter of perspective? I do not know. And I cannot say for others but as far as I am concerned, I only feel that we need to ask ourselves some questions: Where is the Goenka in us; his ideals; his values.

“Here Justice Gogoi is sounding just like Justice Ramana when he lamented that investigative journalism is vanishing in India. Judiciary must certainly be more proactive. It should be more on the front foot. This is what I would like to call redefining its role as an institution in matters of enforcement and efficacy in the spirit of its diktats, of course, subject to constitutional morality. Here is a judge who is showing concern for the institution.

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I remember that Justice Gogoi had stopped the transfer of Justice S Muralidhar, who was a great votary of Article 21. So how is this contradiction of attitude now? The point is that Justice Gogoi liked a good life, it came in the public view and it was commented upon by the press. These are the questions which he should have answered.”

Justice Gogoi had also played the sympathy card in some of his interviews. He had maintained that since he is from the North-east, he is targeted. Justice Bhanwar Singh said:

“I don’t think he had been censured because he hails from the North-east.  There is no denying the fact that there have been instances of discrimination against the North-east people. Students from the region have been often beaten up. These are ground realities. Talking of Justice Gogoi, he had been criticised, but maybe it was because he had given quite a few pro-government decisions. However, he has also given decisions against the government. But we shouldn’t forget that many judges had given pro-government judgments and been rewarded with positions of head of tribunals. This is more so if we think that a Rajya Sabha nomination is a favour. In fact, I think that judges shouldn’t take up positions after their retirement but should get pension on the basis of the last salary drawn.’’

But why was the book written in the first place? Why write a book and get into controversy? Justice Bhanwar Singh tried to explain the predicament of Justice Gogoi by the way of a parable. “I would like to relate a small anecdote from the Vishnu Puran. Lord Krishna and Baldev were in search of a gem which they knew was with someone in the jungle. Krishna asked Baldev to stay outside the jungle and he pursued the man deep into the forest. Here, a lion attacked the man and ate him along with the diamond. Krishna returned crestfallen and related this to his brother. Baldev then insinuated that Krishna had kept the gemstone and was lying. This hurt Krishna and he went in search of the lion but found that it was killed by a giant. He killed the giant and got the gemstone returned publicly.

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“I narrate this story to make the point that Justice Gogoi was a victim of character assassination. He had been put in the dock on charges of sexual misconduct. This must have weighed heavily on him, and in order to exonerate himself from the charges, he wrote the book.’’

Former CJI Justice S Rajendra Babu said that the type of politics entering this institution is very sad. “Why should a chief justice write a biography of this nature, I don’t understand. I have not read the book and I don’t consider it worth reading. In my view, it doesn’t deserve any consideration. He writes only about himself. It is not about the institution or the principles or philosophy. Why does he need publicity for a book like that?’’ Strong words, indeed.

But judicial propriety and piety don’t end with one’s tenure as a CJI. The CJI is an institution and its occupants are expected to maintain the sanctity of the chair till the very end. The sad fact is that till yesterday, the man who had the power to acquit or exonerate others, is today compelled to make a plea for justice by writing a memoir.

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