Dear CJI Gogoi, Have You Changed Your Mind About ‘Noisy Journos’?

Justice Gogoi ought to have kept his calm, and should decide on legal issues alone, writes SC advocate Namit Saxena.

The unusual CBI vs CBI case unfolding before the Supreme Court has attracted a lot of attention. Tuesday’s (20 November) hearing (or not?) attracted maximum attention as Chief Justice of India Gogoi expressed extreme displeasure on the leakage (or not?) of Alok Verma’s response to the CVC, being carried in the form of an article by The Wire.

What Made Gogoi See Red?

Justice Gogoi was also upset about the request from Alok Verma’s Counsel the day before, seeking more time to file the response. Unusual as it may seem, Senior Advocate Fali S Nariman appearing for Alok Verma, responded by shifting the blame to the press, terming the article ‘irresponsible’, and on the Counsel, who requested for more time, calling it ‘unauthorised’.

After Justice Gogoi declined to hear the matter and proceeded with other matters, Nariman, along with the other counsel, came back to the courtroom and sought permission to address the court, after the board was over.

Graciously, Justice Gogoi permitted this. When the matter was taken up again, Nariman sought to clarify the article, but Justice Gogoi had made up his mind by then. He refused to hear him and the other counsel who were trying to clear out their names, and made it clear that the Supreme Court is the place for adjudication of legal rights alone.

SC Adopts the ‘Sealed Cover Mode’

Three things are important here. One, whether the response by Alok Verma to the CVC report filed in the court was to be in a sealed cover. Second, whether the sharing of a response to the CVC questionnaire by an online media portal irk the top court of the country to the extent that it would postpone the hearing of a matter as sensitive as this, by 10 days. And I ask myself this question, should a judge get irked at all when he wants to decide only on legal issues? Third, are we enhancing the ‘sealed cover jurisprudence’ and is it valid?

Firstly, the order dated 26 October 2018, did not direct that the CVC report which is to be filed in Supreme Court, ought to be in a sealed cover.

Due to reasons best known to it, the CVC report was filed before the Court in a sealed cover, such that the Solicitor General Tushar Mehta also did not receive a copy, had to seek the same from the Court.

But on 16 November 2018, the Supreme Court adopted the sealed cover mode, and directed that the CVC report be furnished to the Counsel appearing for Alok Verma in a sealed cover, and that he can file his response to the same before the Court in another sealed cover.

A Good Judge Must Stay Calm At All Times

The story by The Wire dated 06:30 AM on 16.11.2018 that is, prior to the hearing on the same date, claims to have seen Verma’s official response to the CVC Questionnaire. It is therefore crystal clear that the intent of the Supreme Court was that the response by Verma to the CVC Report should be for the eyes of the bench only.

The sharing of the same was therefore, wrong. However, what The Wire shared was not the response to the CVC Report, but the CVC Questionnaire.

Interestingly, the Counsel appearing for Verma requested on 19 November, seeking more time in filing the response to the CVC Report. I wonder how, if the response to the CVC Report wasn’t even prepared to be filed, could The Wire have seen it. It will be interesting to see if Justice Gogoi takes it forward or proceeds with the case on its merit.

Second, a good judge must not only be independent, courageous, and knowledgeable, they must also possess integrity and a calm, rational mind. Justice Gogoi ought to have kept his calm, and should decide on legal issues alone. The sharing of the response was not crucial to the legal issues involved in the matter.

Justice Must Be Transparent, Not Opaque

I must also point out the trend of the ‘jurisprudence of sealed cover’. Justice must be transparent, not opaque. Of late, on a number of occasions including the Judge Loya case, the Bhima Koregaon row, the NRC issue and the Rafale deal, all these saw sealed covers directly for the bench.

Unlike the executive, every order passed by the judiciary must stand on reason.

Transfer of information from bar to bench, which is directly accessible by the bench alone, violates the constitutional dictum of open justice and reasonable justification.

Justice Gogoi recently said at the 3rd Ramnath Goenka Memorial Lecture that ‘independent judges and noisy journalists are democracy’s first line of defence’. Rephrasing the same, makes less sense. Independent journalists and noisy judges does not make for a healthy combination. I hope the judiciary, as the 3rd pillar and the media as the 4th one, fight the evils independently and noisily, together. Till then, fingers crossed.

(Namit Saxena is an advocate at the Supreme Court of India. He tweets at @namitsaxena2007. This is an opinion piece and the views expressed are personal. The Quint neither endorses nor is responsible for them.)