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Post 1990, the courts - particularly the Supreme Court - seemed to freely rule against the executive. The anti-executive Court peaked during the UPA-2 regime, during which period public faith in the separation between the government and the Judiciary was affirmed. However, more recently, this trust in the separation has been shaken.
Judges are comfortable speaking the language of the law, which includes judicial precedents, principles of interpretation, and other legal concepts. One is worried each time a judge steps outside the comfort of a court room to speak on broader issues. Judges, for the most part, have been reclusive. This has helped the Court maintain both its distance and its aura.
Former Chief Justice of India Ranjan Gogoi’s recent interviews, during which he made a staunch defence of his Rajya Sabha nomination, mark a deviation from this trend.
The Curious Case of the Lobby
The government is the most powerful entity in any sovereign territory. It has a say in the transfer and the appointment of judges, it controls criminal investigations, the Intelligence Bureau and the Taxation authorities. It also decides on appointments to positions of power, such as nominations to the Rajya Sabha.
But Gogoi does not seem to think so. For, him it is a shadowy group known as the “lobby” which has a strangle hold on institutions such as the Judiciary.
So who is the lobby? The lobby is a devious set of people and as those interviewing Gogoi would suggest, consist of the likes of Prashant Bhushan. It is a different matter that Bhushan argued cases such as 2G spectrum and coal allocation. Another alleged member of the lobby, Kapil Sibal, in the same period held the post of Union Telecom Minister (post the resignation of A Raja in 2011).
While 2G was being argued in Court, a few kilometres away, anti-corruption protests were raging in Ramleela Maidan. These protests were headed by the current Chief Minister of Delhi, whose party members have also critiqued Gogoi’s nomination. They are also, as we are made to understand, a part of the lobby.
The lobby also consists of civil rights activists such as Harsh Mander, who in spite of being part of the National Advisory Council in the UPA regime, criticised the Manmohan Singh government through writings in national dailies.
However, Gogoi deems questioning authority a problem. So when Mander moved an application in the Assam detention case seeking the former CJII’s recusal on grounds that his obiter views in Court displayed clearly a bias, he was bullied in open Court by Gogoi. Ultimately, Mander’s name was struck off from the case he had filed.
The lobby also seems to also consist of lawyers and journalists who have written and criticised judgments across political regimes. Gogoi also finds analysis of his judgements and views on his conduct in Court an attack on judicial independence.
We are entering a new stage in inter-institutional relationships where the constitutional role of the Court as being anti-majoritarianism is being re-defined. At a time when the government is in power with 300 plus seats and the Judiciary has failed to pass a single major order against the Executive, we are being told by a retired CJI that the Judiciary is under threat from civil rights lawyers, journalists and activists.
This view of the former CJI stems directly from the populism of the current government, which is premised on the belief that liberal views are contrary to national interest and need to be checked.
Ushering in Judicial Populism
The challenge to Article 370, Ayodhya, electoral bonds and Rafale are only a few of the many cases for which Gogoi’s Court faced criticism. He failed to follow both procedure in terms of urgency and in passing of interim orders. He also failed in application of substantive law in decreeing a suit for title as also on public law on transparency. This is apart from the immoral and illegal manner in which he dealt with sexual misconduct allegations against himself.
Every case mentioned above has either been given in favour of the Executive or delayed enough to extinguish any chance of meaningful legal remedy.
However, Gogoi, in a display of brazenness, argued on national television that those who have reasoned against his judicial decisions are part of a lobby working against the well-being of the Court. This is the first time a former CJI has attacked critical voices of citizens as being dangerous for judicial independence. The Judiciary is seeking to openly pander to the executive’s language of populism by giving judicial validation to political majoritarianism.
The legitimacy of the courts was attacked back in 2014, when the Court struck down the NJAC. Now the executive’s project of limiting the judiciary to the confines of ballot box validation and away from the Constitutional project of institutional democracy is complete. Much like a former Army Chief, it appears that we might also soon see a retired judge as member of the cabinet.
Press Conference and Politics of Judges
Judges don’t need to be seen in the press. This is because their job is not to win a popularity contest, but to deliver judgments in law. The press conference led by Justice J Chelameswar, who had authored the dissent in NJAC, found nothing wrong with political influence in appointments.
The reason for the press conference was that he was unhappy with how cases were being allocated by then CJI Dipak Misra. Gogoi also was unhappy for the same reason. I assume it is because Dipak Misra, being master of the roster, decided to arbitrarily sit over a plethora of media savvy cases while the members of the Collegium were kept away from headlines.
With all their tenures pending and no clear reason given by judges themselves, it was naïve to assume this step resulted from a moral high ground. There was no need for people to try and celebrate the press conference as a triumph of conscience and constitutionalism. Any position of authority that can influence those in power will invite some level of politics, and I am sure the Collegium isn’t free of it.
The Bar must stop attributing motives to the speeches of judges and reading into their statements in book openings and seminars. One needs to stick to judgments of the judges. It’s the only power they have. And the only one that matters. It is how they exercise this power that reflects their judicial conscience.
Gogoi’s nomination to the Parliament is a dark day for the Judiciary. Not only because he has lowered the dignity of the office of the CJI and because he ran such an opaque Court, but also because judges in the Apex Court allowed the wrongs of this tenure.
Post Gogoi, the pro-executive trend continues. It is because of the collective failure of the Court that we are here today. From delayed habeas corpus petitions to postponed bail applications of those involved in protests, the Supreme Court has time and again failed to act as the vanguard of constitutional rights.
Welcome to the new phase of India, where the Judiciary seeks umbrage under political populism and not constitutionalism.
The author is an advocate at the Supreme Court of India.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.