"History repeats itself, first as tragedy, then as farce," said Karl Marx, referring to Napoleon I and Napoleon III respectively.
In the year 2019, this can easily be said of Chief Justices of India, Dipak Misra and Ranjan Gogoi, respectively. If Misra's actions damaged the credibility of the Supreme Court as an institution, Gogoi has bulldozed over what's left of the structure.
Senior advocate Raju Ramachandran, advocate Mihira Sood, and legal journalist Murali Krishnan have all elaborately and in greater eloquence called out the impropriety and illegality of such behaviour. The violation of principles of natural justice and the attempt to defame and intimidate the complainant are all too obvious. Sood draws a straight line between the conduct of Misra and Gogoi — an important comparison that bears going into in some detail.
When people think of Misra and Gogoi, they have in mind the judges' press conference of January 2018 which was prompted by Misra’s allocation of the highly contentious and sensitive Judge Loya death case to a bench headed by Justice Arun Mishra. At least this was what was evident most famously from Gogoi's affirmation during the press conference itself. That, however, was not the worst thing during the tenure of Misra as CJI.
The most egregious abuse of power by Misra was in the context of the allegations of potential corruption on the part of Misra. The Campaign for Judicial Accountability and Reforms and Common Cause had filed petitions seeking a court-monitoring of the Central Bureau of Investigation's probe into the bribery charges against Justice (Retd) IM Quddusi in the context of a medical college’s case heard by Misra. The concern raised was that the course of the investigation had revealed the potential involvement of Misra in the said case and the fear expressed was that this case was being manipulated by the Union Government to put pressure on the CJI.
When a bench headed by Justice Chelameswar referred the case to a bench of the five senior-most judges (excluding the CJI), the response by Misra was to immediately constitute a handpicked bench of five judges presided by him to re-assert his powers as the “master of the roster” and send the case to another handpicked bench which promptly dismissed it with costs. To say the whole saga was unsavoury would be putting it very lightly.
Misra's actions find an eerie echo in the actions of Gogoi. A "bench" is constituted at a short notice. A "hearing" is called with little or no notice to parties, and on the court's own motion. The very person whose actions are in question presides over the bench. A dubious "order" is passed that disingenuously tries to dissociate the CJI from the impropriety he has just committed. In Misra’s case, he simply asserted his powers as "master of the roster" to choose the bench to dismiss the case seeking an inquiry against him. In Gogoi's case, his name does not appear on the order sheet even though he presided over the bench and no “judicial order” is passed.
In effect, Gogoi called a press conference without actually calling a press conference. The hearing was not aimed so much as taking any judicial action but putting out his version of the story. What is particularly galling is that he chose to do it from his perch as the Chief Justice of India. It is as blatant and naked abuse of power as it gets.
There was another important aspect of this "hearing" that we must not forget. Gogoi was not addressing an empty courtroom or just reporters who happened to be there. He, like Misra, had the support and encouragement of certain members of the Bar who were only too happy to be part of the ugly spectacle. The Attorney General for India, the Solicitor General and other members of the Bar were only too happy to indulge Gogoi in this blatant abuse of power and join him in his bizarre tirade against the complainant and unseen conspirators. It was a ganging up of powerful men aggrieved that one of their own was being asked to be accountable for his actions.
Thankfully, not all hope is lost. Even as the Bar Council of India moved post-haste to give a clean chit to Gogoi and cast aspersions on the complainant, other members of the Bar and Bar associations have been less than eager to do the same. We still have not heard what the other judges of the Supreme Court have had to say about the matter (barring Arun Mishra and Sanjiv Khanna who were on the bench with Gogoi). If the institution must save what’s left of itself, it’s up to them to step up and do what they must.
The author is a Senior Resident Fellow at the Vidhi Centre for Legal Policy, and also an Executive Committee Member of the Campaign for Judicial Accountability and Reforms
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Updated Date: Apr 24, 2019 09:04:52 IST