Big SC Moments of Justice Gogoi – ‘Noisy’ Judge and the 46th CJI
To defend democracy, we need “not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges,” said Justice Ranjan Gogoi, the man whose was sworn in as the new Chief Justice of India on 3 October.
These words, spoken at the annual Ramnath Goenka Lecture, gained relevance as Justice Gogoi was one of the four ‘noisy’ senior judges of the Supreme Court who had held a press conference in January 2018 to raise concerns over the administration of the judiciary. His involvement in this unprecedented press conference, where he and the other judges warned of threats to democracy, had led to speculation in the legal community that he could be superseded for the CJI post.
However, all speculation was put to rest after current CJI Dipak Misra recommended Justice Gogoi for the position on 4 September, as per the convention of handing over the baton to the senior-most judge.
But what kind of a CJI will Justice Gogoi make? Here are the highlights of his tenure at the Supreme Court thus far.
Justice Gogoi’s Major Decisions at the Supreme Court
Justice Gogoi was elevated to the Supreme Court on 23 April 2012. He had entered the higher judiciary through the Guwahati High Court in 2001, and had been appointed Chief Justice of the Punjab and Haryana High Court on 12 February 2011.
During his tenure at the apex court, he has not only authored important judgments, but also dissented in some major cases.
Petition Challenging Pranab Mukherjee’s Election as President - DISSENT
Justice Gogoi had only been on the bench for a few months when he found himself taking a minority position in contrast to that taken by the Chief Justice.
Former Lok Sabha PA Sangma challenged Pranab Mukherjee’s election as President in 2012 on the grounds that he had been holding an ‘office of profit’ at the time he filed his nomination papers, contrary to the Constitution. A five-judge Constitution Bench including Justice Gogoi was set up to first decide whether the petition was maintainable and needed to have a full hearing.
Then CJI Altamas Kabir and two other judges held that there was no need for a regular hearing, because the offices Mukherjee was alleged to have held at the time – chairman of the Indian Statistical Institute (ISI) and leader of the House in the Lok Sabha – would not be offices of profit in any case.
Pictures of Top Politicians Allowed in Government Advertisements
In May 2015, the Supreme Court had held that government advertisements could only include photographs of the prime minister, president and chief justice of India – this was meant to be a measure to ensure politicians in power could not use taxpayer money to gain political advantages.
A review petition was filed against this, which was heard by a bench headed by Justice Gogoi. While they retained the other restrictions on government advertisements in the May order, in 2016 they did modify the list of politicians who could be included in the ads, to include governors, chief ministers, and where relevant, a specific cabinet minister.
The reasoning offered by the Centre when asking for a review of the decision was that this violated the right to free speech since the public had a right to know who was involved in different programmes, and that only allowing such a small list of politicians would lead to creation of personality cults. Justice Gogoi’s order in 2016 didn’t provide any specific reasons.
Contempt Notice to Justice Markandey Katju (Retd)
After his retirement, Justice Markandey Katju has often spoken out about major issues in his blog and on Facebook. In September 2016, he strongly criticised the judgment of the Supreme Court in the Soumya rape and murder case, a judgment by a bench headed by Justice Gogoi. The bench had held that the accused was guilty of rape, but not murder, since he had not intended to kill the girl, nor did he have knowledge that his actions were likely to do so.
Justice Katju disagreed with the judges in no uncertain terms, saying there were several “fundamental flaws” and “grievous errors” in the judgment, which had been authored by Justice Gogoi. One of his blog posts was titled “The Intellectual Level of Supreme Court Judges”.
Justice Katju was summoned to the court, where he defended himself in a fiery session, after which Justice Gogoi issued a contempt notice to the retired judge – the first time a former judge of the apex court has faced a contempt charge. However, after Justice Katju made a written apology and deleted the posts, he agreed to drop the case.
Lokpal Act Workable, No Need for Delay
In 2014, PILs were filed before the Supreme Court by the NGO Common Cause and Just Society, asking for the appointment of a Lokpal and Lokayuktas under the Lokpal Act which had been passed in 2013. The case came up for hearing by a bench headed by Justice Gogoi in 2017.
The Centre raised a number of quibbles with the Lokpal Act, saying it was not possible to appoint officers under the Act because of technical issues, one of which was that the Selection Committee couldn’t function because it is supposed to include the Leader of Opposition, but there was no official Leader of Opposition in the Lok Sabha since no Opposition party had 10 percent of the House as required.
Justice Gogoi disagreed with the government in a strong order in March 2017, noting that this objection was not valid since Section 4 of the Act made it clear that appointments of Lokpals or other officers would not be invalidated just because there was a vacancy in the Selection Committee. The bench also noted with disapproval the government’s failures to introduce amendments to the Act which they claimed were required.
In July 2018, Justice Gogoi took serious note of the Centre’s continued failure to appoint a Lokpal, and held that their affidavit was wholly unsatisfactory – he continues to maintain his stand on that, waiting for a follow-up from the government.
Compilation of NRC
Perhaps the most controversial case with which Justice Gogoi has been associated is in relation to the NRC. In 2014, he and Justice Rohinton Nariman referred the overarching question of whether the special citizenship criteria in Section 6A of the Citizenship Act (which applies to people covered under the Assam Accord) to a larger bench, but they nevertheless directed that the National Register of Citizens for Assam needed to be prepared.
With the second draft of the list finally out, excluding some 40 lakh residents, Justices Gogoi and Nariman are also examining the Standard Operating Procedure prepared by the Centre and the Assam Government to deal with claims and objections arising out of the draft.
While some of the opposition to the decision taken by the judges relate more to the language used by them in the order, there have also been questions asked over whether or not it was appropriate for Justice Gogoi to even be on the bench looking into the case since even he would have to apply to be part of the NRC. This would appear to create a conflict of interest for him, which, according to some critics, means he should have recused himself.
Former Chief Ministers Not Allowed to Retain Bungalows
In 2016, the Uttar Pradesh Government amended the law to allow former chief ministers of the state to continue to retain possession of their official accommodation. This was challenged in the Supreme Court, where in a May 2018 judgment, Justice Ranjan Gogoi struck down the amendment, holding that this law would create a separate class for such retired public servants, which is not permissible under the Constitution.
Justice Karnan Contempt Case
Justice Gogoi was part of the seven-judge bench which held Justice Karnan of the Calcutta High Court, guilty of contempt of court. Justice Karnan had alleged corruption in the highest levels of the judiciary, as well as caste discrimination against him – even going so far as to hold the seven judges hearing his contempt case guilty of offences.
Justice Gogoi and Justice Chelameswar also noted in their separate but concurring order that this was a case which highlighted the need for disciplinary measures which can be taken against judges of the Supreme Court or high courts. Currently, the only option is impeachment, which is a difficult political process. This was also something highlighted during their press conference in January 2018, and the letter they had written to the CJI which they released at the time.
Childcare Facilities at the Supreme Court and Senior Advocate Reform
Justice Gogoi has also delivered two judgments that have earned him plaudits within the legal community for a willingness to introduce reform to the lawyer’s community. In October 2017, he introduced an objective points-based system to decide which lawyers would be designated as ‘senior advocates’, which till now had been an opaque process which favoured status over merit.
Justice Gogoi has also been heavily involved with the childcare facilities at the Supreme Court, ensuring that these facilities are adequate and addressing concerns with the rules that had been introduced for them which were challenged for being discriminatory and problematic.