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Former Chief Justice of India, now a member of the Rajya Sabha, Ranjan Gogoi on Wednesday registered strong objection to recent bouts of criticism against the higher judiciary.
While speaking during a Webinar organised by the Confederation of Alumni for National Law Universities (CAN) Foundation on the “Ensuring an Independent Judiciary under our Constitution: Confronting the Contemporary Challenges”, the former CJI remarked,
Gogoi began his key note address for the session by remarking that as of late, debates have lost their academic and intellectual character. He remarked that at the “slightest opportunity”, they have become vilification of the idea or the persons putting forth an idea.
He also spoke critically of the reactions on social media to the conduct of the webinar and his participation in the same.
“These are the people who weigh on the concept of the independence of the judiciary, but they would not permit an individual - a former Chief Justice - to have independent thought and express it”, he said.
He added, “The more I heard about these expressions of opinion, the more determined I became to take to take part…”
During the course of his speech, Gogoi also asserted that the scheme for immunising judges has to be made stronger.
Responding to issues concerning allegations made against judges of the Higher Judiciary, Gogoi stated that, apart from the parliamentary (impeachement) route, there was an in-house procedure involving three stages “in vogue for about 20 years” which is available online on the Supreme Court’s website.
This procedure is the same for all judges of the Higher Judiciary he said. “Please read it. I don’t think many of you have read it”, he added.
Notably, he went on to say that the in-house enquiry, “It does not contemplate the participation of lawyers, witnesses, cross examination … It does not contemplate the participation of outsiders.”
Given that “there are 300 complaints made against judges every week”, it may not be possible to entertain them all. If any complaint is serious enough, it is placed before the Chief Justice of India.
If after inquiry, the complaint is to be dismissed, the report is not made public. Gogoi added, “There is a good reason. It may embarrass the judge. A frivolous complaint may embarrass the judge.”
Gogoi went on to emphasise,
He went on to say, “I was the Chief Justice of India for 13 months. I found good people not wanting to become judges.. young members of the bar not keen to become judges. Why? The office of the judge of a Higher Judiciary has been made so vulnerable that a lawyer would be happy to continue as a lawyer. Don’t forget the sacrifice that a lawyer makes when he becomes a judge!”
Speaking on how there was sufficient disincentive to deter any right thinking lawyer from wanting to become a judge, Gogoi also remarked,
“All you need to do to defame a judge today is to bring allegations against him, be the complainant, supported by an affidavit… The allegations may be unfounded, may be found to be unfounded, but the damage is done.”
As for executive interference in the independence of the judiciary, the former CJI said, “Speaking for myself, I can say, I did not experience it. But it is a possibility.”
He went on to add, “There is an equally, if not more, dangerous source that attacks or can attack the independence of the judiciary.”
In this regard, he referred to an “ideological group of people”, activists, intellectuals, web portals and particular examples of mainstream media - in electronic and print - whom he criticised for having made “identification marks” for “who is an independent judge.”
Referring to the projections made by these quarters regarding the identification of independent judges, Gogoi observed,
“… (According to them) a judge must be necessarily anti-establishment. He must be anti-authoritarianism…He must be eloquent on issues like rich-poor divide, oppression of the marginalised, issues pertaining to suppression of fundamental rights and he must advocate free speech even to the extent of touching the frontiers of defamation - These are the identification marks of an ‘independent judge’,”
Gogoi added that if a judge is not found conforming to these expectations, his independence is questioned and he is attacked.
“This is the danger… If the judge doesn't do it (conform to these expectations), (they will) 'attack the judge' - not criticise the judgment…You (such critics) don’t criticise the judgment, you attack the judge … this is destructive of the independence of the judiciary", Gogoi said.
As he concluded his keynote address, Gogoi spoke on the need to refrain from attributing motives to judges during criticism, and said, “I believe I am in the midst of young people who are the future of the Indian judiciary. Give it a thought. ”