Sadly, former Chief Justice of India Ranjan Gogoi's legacy as a CJI and a judge do not make for good reading.
His new book, 'Justice for the Judge' and his attempts to defend his actions during its promotion, do not really change any of this.
There is nothing in the book that mitigates the impropriety of the way he handled the sexual harassment allegations against him, or addresses the specific problems in his approach to cases the government had an interest in including the Rafale, Alok Verma (CBI Director) and Kashmir habeas corpus cases.
Without anything meaningful to engage with, there is little to be said about the book that hasn't already been said in the 'report cards' of his tenure that he is so offended by.
However, there is one chapter in his book that does deserve some more attention – Chapter 11. NRC: A Document for the Future.
In it, the current Rajya Sabha MP takes on the criticism of the way in which the Supreme Court, under his stewardship before and after becoming CJI, ensured the updation of the National Register of Citizens in Assam. He makes an argument for why the NRC exercise was necessary and how it was essential to the future of Assam as a part of India.
He also, in this chapter, makes a clear argument for why he should never have been part of this case at all, much like he should never have been on that bench to address the sexual harassment claims against him.
Justice Gogoi's Involvement With the NRC
From 2013 onwards, the Supreme Court began hearings on a batch of writ petitions dealing with issues regarding so-called illegal immigrants in Assam, from deletion of 'illegal voters' to the updation of the NRC.
These demands were grounded in the commitments made by India in the Assam Accord of 1985, and which had been subsequently enshrined in law in Section 6A of Citizenship Act.
Section 6A created a new framework for Indian citizenship for people in Assam which was meant to weed out those who had illegally crossed over from Bangladesh, which has been an issue of great concern in the region for many decades.
The NRC is supposed to be the mechanism to identify those who were not Indian citizens and should therefore be deported, and had a long history, with one version of the register created in 1951 when concerns over widespread migration in the aftermath of Independence had been raised.
Justice Gogoi was part of the substantive hearings in the writ petitions from the start, first as the 'junior' member of a two-judge bench with Justice HL Gokhale, and then as the 'senior' member with Justice Rohinton Nariman.
There have long been questions within the legal fraternity over whether he should have been part of these benches at all, given he comes from Assam himself, and therefore had a significant interest in the matters before the court.
Opinion has been divided over whether he should have recused himself though, with many arguing that just because he was from Assam and his family would also have to be part of the NRC process, this did not mean that one should assume any bias. After all, all judges are in a sense personally affected by cases dealing with national/state legislation and policy.
The central and Assam governments agreed to update the NRC during the hearings in the Supreme Court in 2013, following the urging of the bench. On 17 December 2014, in a judgment authored by Justice Rohinton Nariman, the court ordered that the NRC exercise had to be completed within a time-bound manner and issued several directions for this.
On paper, this may not seem like an untoward thing to do. However, it was strange that the court would push so hard for this when it had also decided that the constitutionality of Section 6A was not clear, and it needed to be referred to a larger bench.
Even more controversially, the apex court, like it had in its Sarbananda Sonowal judgment from 2005, failed to identify any actual statistics or data on illegal immigration in Assam, which should have been the starting point for any discussion on a need to identify and deport illegal immigrants.
The only real data point that the 2014 judgment referred to was a reply by the Home Ministry in the Rajya Sabha in July 2004 that there were 50 lakh “illegal Bangladeshi immigrants” in Assam. This answer, however, had been retracted subsequently for being based on hearsay.
These discrepancies in the 2014 judgment have inevitably been part of the conversation about Justice Gogoi's involvement in the case, as those in favour of his recusal have argued that the court's approach (in the hearings as well) demonstrated a bias in favour of the narrative about illegal immigration in Assam.
The approach of the Supreme Court over the NRC process – pushing it through even in the face of skepticism within the government, taking information in sealed covers and dictating the way in which the updation process took place – and issues relating to illegal immigration in Assam in subsequent years have only added to these reservations.
Despite this, only one request for Justice Gogoi's recusal was ever made, in a case regarding human rights of those in detention centres. The petitioner, human rights activist Harsh Mander, made the request after Justice Gogoi had in previous hearings changed the focus of the matter to why more people were not being detained and deported.
Gogoi was so displeased with the recusal plea that he had Mander struck off the case, and appointed his lawyer Prashant Bhushan (who had advised against the move) as amicus curiae.
After reading Chapter 11 of Gogoi's book, however, all the concerns about Justice Gogoi's involvement in the case become more difficult to ignore.
Proof of Pre-Determination?
We are reproducing several excerpts from the chapter so that our readers can judge for themselves whether they believe this is the case.
"Why was no attempt made to stop infiltration? The answer is simple—because of vote bank politics. Immigrants translated into votes and a large number of immigrants spelled a large number of votes. In an environment where the indigenous population strongly opposed such immigration, exploitation of the fears of the immigrants led to a captive vote bank. And such vote bank politics led to extremely strong support and promotion of immigration from the powers that be."Justice for the Judge, Chapter 11, at pg 156
"The issue of updating the NRC remained buried till 2005, when in a tripartite meeting between PM Manmohan Singh, CM of Assam Tarun Gogoi and the AASU, a decision was taken to update the NRC. The decision was nothing but lip service as nobody wanted to extinguish the fire sparked by the immigration issue as it afforded political warmth to everybody."Justice for the Judge, Chapter 11, at pg 161
"Undoubtedly, the issue of immigration in Assam has always been the most important cash cow for all political activities in the state. The issue is the biggest king-maker in the state. The overt ideology of all political parties has remained remarkably solicitous about the people of Assam with the matter of immigration being described as the most important issue ever and the NRC update or anything similar being the most sacrosanct of acts for them. But those knowing the actual truth would never want a sincere and authentic NRC update to happen for it would expose everybody. And yet, the NRC update was one of the most crucial exercises linked to this festering issue. Who could have grasped this better than the Supreme Court, which took cognizance of the issue."Justice for the Judge, Chapter 11, at pg 163
"There are many others who have criticized the exercise of updation of the NRC. Such criticism has been built on an entirely academic basis, ignoring the decades of struggle and sacrifice of a race to preserve and protect its culture and linguistic identity. These critics, ensconced in comfortable spaces in Lutyens’ Delhi, have no connection with ground realities. They ignore the feelings and aspirations of the people of a Northeastern state which still reels under a strong wave of anti-national feeling and of separation from the rest of the country. It is a state which has only recently recovered from insurgency. It is such criticism and thinking that generate and nurture sentiment which is contrary to the nation’s interests and integrity."Justice for the Judge, Chapter 11, at pg 172
When Should a Judge Recuse Themselves From a Case?
There is nothing wrong with Ranjan Gogoi, Indian citizen from Assam, holding these views or opinions for himself, or making them public, or writing them down in a book.
The question is, however, that if Ranjan Gogoi holds such strong opinions about the issue of illegal immigration in Assam, can he still make an impartial judicial decision about the issue?
One might argue that there is an objective basis to this opinion which belies the question of bias. Gogoi cites in his book two of the most important sources of the argument that Assam was facing a serious threat from illegal immigration:
The report of 1931 census administrator CS Mullan, a British official, who warned of "an invasion of vast horde of land hungry Bengali immigrants, mostly Muslims, from the districts of East Bengal".
The 1998 report of Lieutenant General SK Sinha when he was Governor of Assam, which said the "unabated influx of illegal migrants from Bangladesh into Assam and the consequent perceptible change in the demographic pattern of the State has been a matter of grave concern".
Leaving aside the racism and hypocrisy of Mullan's statement (it was the British who had encouraged migration to Assam during the time when it had been merged with East Bengal after the Partition of Bengal), none of these claims, even in the census report, were founded on actual numbers.
Gogoi himself admits that there is no reliable data on this (see pg 161).
For an average citizen, it is still perfectly acceptable to take the comments in the report at face value.
But should a judge rely on these two unsubstantiated sources to inform himself about the 'illegal immigration' into Assam? And should he then use them to rule in the nation's Supreme Court on crucial questions that affect millions of lives? Questions like - whether sufficient steps have been taken to deal with illegal immigration, how deportations are to take place, and whether the entire population of a region should be subjected to an invasive process that no other Indian citizens have to go through? That is a different kettle of fish entirely.
There are no hard and fast rules on recusal of judges per se, except if they have a pecuniary interest in a particular case. The decision of whether or not to recuse themselves is purely at the discretion of the judge otherwise, though there are some guiding principles that can be applied.
These were enumerated in the opinions of Justices JS Chelameswar and Kurian Joseph in the NJAC case back in October 2015, following analyses of English and Indian legal precedent, and the principles of judicial conduct adopted by Indian judges.
The question to be asked is whether there is a 'real danger' of bias if a judge hears a particular case, which the English courts had specified to mean a possibility rather than a probability (ie, the standard is not overly restrictive).
As to how to decide whether there is such a danger, Justice Kurian Joseph had this to say:
"The simple question is, whether the adjudication by the Judge concerned, would cause a reasonable doubt in the mind of a reasonably informed litigant and fair-minded public as to his impartiality."
Should Gogoi Have Recused Himself From Taking Up the NRC Matters?
The first three excerpts show a clear political stance about illegal immigration in Assam and the NRC and the need for it.
The fourth shows, despite ironically deriding Lutyens Delhi-based critics for ignoring ground realities, that he believed the "feelings and aspirations" of the people of Assam – but not all the people of Assam – needed to be factored into the court's decision-making.
Justice Anjana Prakash, a former judge of the Patna High Court, believes the language used in these excerpts shows a dangerous conflation of himself with the institution of the Supreme Court – something which also cropped up in his claims of how the sexual harassment allegations against him were a threat to the independence of the judiciary.
"While explaining the necessity to take up the NRC issue, he talks of how there was nobody else better than the Supreme Court [see excerpt 3 above], which took cognizance of the issue," she points out. "But he was part of that bench, which already makes this a strange thing to say, and on top of that this chapter shows he clearly had his own personal views on the matter."
What conclusion would a reasonably-informed and fair-minded person take from this? What they have to consider after reading this chapter, she says, is this:
"So what you see is a person who sounds almost like an activist for the cause, who offers up his personal views as that of an institution, and it just so happens that at this time he is wielding power by virtue of the office he holds in that institution, the institution takes a certain action."
A retired judge of the Supreme Court who did not wish to be named said that if a judge holds such strong opinions about an issue, it is not a good idea for them to hear a case on the issue.
At the end of the day, it is a subjective call to say whether Ranjan Gogoi opinions about immigration in Assam created a "real danger" of bias. There is indeed a "real danger" of bias when trying to answer the question at all.
The only thing, perhaps to keep in mind is that unlike our own private musings and thought experiments, in this case the answer was to have meaningful consequences for millions of people. The rest is up to you.