In his recently published memoir Justice for the Judge, former Chief Justice of India Ranjan Gogoi, now a Rajya Sabha MP against whom a privilege notice has been filed for allegedly disparaging the Upper House, reveals the tension that inhabits the relationship between the government and the judiciary.
But he deals sparingly in his recent media interviews with the crucial National Judicial Appointments Commission (NJAC) Act which a Supreme Court bench controversially struck down in 2015.
First rewind to an incident that reflects the nexus between the executive branch and the judiciary. Gogoi was a judge in the Gauhati High Court. The late Tarun Gogoi was chief minister in the Congress government in Assam. Justice Gogoi says in his book that the chief minister tried to influence “the outcome of the police constables case”.
Such political interference in the judicial process is not uncommon. An entire ecosystem has developed over the years to subvert the criminal justice system.
The symptoms are malignant. According to PRS Legislative Research, over 4.5 crore cases are pending before different courts, including 3.8 crore cases in lower courts, 60 lakh cases in high courts and an unconscionable 70,000 cases in the Supreme Court. At the current rate, 23 new cases are being added to the backlog every minute. As a result, jails are overcrowded with prisoners awaiting trial for years.
Court infrastructure, especially in lower courts where trials take place, is shambolic. Vacancies at every level of the judiciary continue to mount, placing further pressure on judges. Poor pay makes many easy targets for inducement.
A self-serving judicial ecosystem comprises three tiers. The first comprises senior advocates who hector, cajole or bully judges to grant adjournments as they flit from one courtroom to another, billing each litigant several lakh rupees for a one-minute appearance.
The second tier consists of shadowy fixers who liaise between counsel and judge, “settling” cases for a consideration. The third tier is made up of silent, invisible officials in court registries who play an important role in deciding which cases get priority hearing.
In his memoir, justice Gogoi points to the hidden hand in the Supreme Court Registry that results in odd outcomes: “The date fixed by Justice Dipak Misra’s Bench for hearing the Ayodhya case, 27 October 2018, was a Saturday. The matter, therefore, came up on 29 October 2018 (Monday) before a Bench of Justice Sanjay Kishan Kaul, Justice KM Joseph and myself. An order was passed that the matter would be listed for hearing before the appropriate Bench in the first week of January 2019. There was no specific date chosen.
“I, therefore, expected that before the cases were listed, my permission would be sought. This was not done and, suddenly, without my knowledge, the case got listed on 4 January 2019. At the time, I had not even constituted the Bench that would hear it. Also, my assessment of the state of readiness of the case for hearing was yet to be completed.”
“Neither the Secretary General nor any of the registrars could explain how the case got listed without my knowledge and permission. Be that as it may, on 4 January, the Bench consisting of Justice Kaul and myself, in the above situation, had no alternative but to pass the following order: ‘Further orders in the matter will be passed on 10.1.2019 by the appropriate Bench, as may be constituted’.”
Justice Gogoi also writes obliquely about the second tier of shadowy fixers — including some disreputable but well-known journalists — who helped manufacture an impeachment charge against then CJI Dipak Misra to stop him from hearing the Ayodhya case because it was felt the judge was positively inclined towards the views of litigants seeking to build the Ram Mandir in Ayodhya.
Gogoi writes: “CJI [Dipak] Misra, who was presiding over the Bench then hearing the case, declined to adjourn the hearing to 2019. In his own way, he made attempts to go ahead with the case. But sometime in April-May 2018, the impeachment episode cropped up. Many believed that the impeachment move was calculated to prevent CJI Misra from hearing the Ayodhya case.”
“Whether there is any substance in this is not within my knowledge. However, I find some commonality between such thoughts and the views expressed in certain quarters that the events narrated in an earlier chapter could have been similarly calculated with not only the Ayodhya hearing that was due shortly, but also the ongoing hearings in sensitive cases like Rafale and NRC in mind. The only difference was that while the first move (involving CJI Misra) succeeded, the second (involving myself) did not.”
“While the hearing was progressing, negative statements by activists and lawyers on one or another unrelated issue kept getting published, perhaps to disturb the peace which was required to decide a case of such magnitude.”
The first tier of this malign ecosystem, comprising senior counsel, orchestrated the operation to impeach CJI Misra who was seen as inimical to the ecosystem’s agenda. It succeeded in its principal objective: Not impeachment but rattling CJI Misra sufficiently to persuade him to delay the Ayodhya-Ram Mandir hearings after the May 2019 Lok Sabha election. It was ironically left to Justice Gogoi to pass the landmark judgment on the Ram Mandir on 9 November, 2019.
Justice Gogoi is himself not entirely blameless. He was one of the four senior justices who took part in the infamous January 2018 press conference aimed ostensibly at improving the Supreme Court’s transparency. Justice Gogoi was accused of sexual harassment by a staffer and faced widespread criticism for accepting membership of the Rajya Sabha four months after retirement as CJI.
All of this points to the immediate need for judicial reform. The establishment of the NJAC was stonewalled for years by the Supreme Court before it struck the Act down as unconstitutional. The collegium system under which SC judges select fellow-judges is nepotistic. It has an inbuilt conflict of interest. The NJAC will end this and make judges accountable as well as render their appointments transparent, encouraging merit over nepotism.
Another key judicial reform that remains moribund is setting up a new Court of Appeal to hear disputes arising out of high court judgments after all levels of appeal there have been exhausted. The Supreme Court should hear matters only requiring constitutional interpretation or cases where substantial issues of national interest are involved.
The cliché that bail, not jail, is the norm should be strictly adhered to. Unless judges know that they will be held to account for their judgments, and the delays in delivering them, India’s broken criminal justice system that favours the rich and punishes the poor will not be mended.
The writer is editor, author and publisher. Views expressed here are personal.
Also Read:
Judicial accountability: Who will judge the Judges in India?
Complaints of corruption against individuals in high offices fall but still deep-rooted in India
Judicial supremacy Vs Parliament: Why NJAC is better than the collegium system
Full text: The Supreme Court judgment on the NJAC controversy
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