THE UNBECOMING OF (a) JUSTICE.

Ranjan Gogoi, J.[1] (as he was then), addressing a function had remarked in 2018, ‘independent judges and noisy journalists are democracy’s first line of defence.’[2] Justice Gogoi, now attributed more for being the Judge of the Ayodhya dispute case[3] should be better known for the reason why he first came to the consciousness of the masses, the unprecedented Press-conference of four puisne judges of the then supreme court.[4] The incident which saw the legal fraternity clearly divided over the development. Justice Gogoi has travelled long distance since then and is again a part of the popular discourse four months after his retirement from the office of the Chief Justice of India—for being nominated to the upper house of the Parliament by the President of India.[5]

Among the four judges in the presser, Gogoi, J. was the next in line to be the CJI, there were speculations thereafter that he might not see the office, which were not at all baseless, but owing to the maturity that Indian democracy has achieved since the two supersessions, its probability was very scarce. He went on to become the CJI. According to the norms, the outgoing CJI, Justice Dipak Mishra[6]—against whom the presser was—recommended his name and the central government—which was implicated for the circumstances of the presser—notified it.

Senior Advocate Fali S. Nariman, in his book ‘God Save the Honourable Supreme Court’[7] has written about the judiciary, ‘Please do remember, that the citadel never falls except from within[8].’ The judges’ presser was first in the history of Supreme Court of India, sitting judges generally don’t make the nuances of the judiciary public. It is required for the integrity of the institution. Mr. Nariman was worried that there were better fora available and the presser was against the interests of the institution…the same institution for which we have cherished for long.

An institution which has proven its metal against the tides of time; Indian judiciary, and the Supreme court in particular has gone through tests from within constantly. The judiciary and the executive have shared a peculiar relationship; where the judiciary is a balancing factor to the executive actions, the latter is attributed for affecting the functioning of the former—more in its own interest.

After the first supersession, when Justice A.N. Ray[9] was appointed the CJI ahead of three judges senior to him (with the three judges resigning from their office following the appointment), C.K. Daphtary, former Attorney General and then a nominated member of Rajya Sabha, said in his speech in the house, “The boy who wrote the best essay has now got the first prize”.[10] The essay referred was the judgement of Ray, J. in Bank Nationalisation case[11] of 1969, his was the sole dissent in the favour of government on a bench of eleven judges; and the prize was the position of Chief Justice of India.

The three judges superseded (Justices J.M. Shelat, K.S. Hegde and A.N. Grover) had worried the government not just in that case, but in Kesavananda Bharati[12] as well. The two supersessions were new experience for India, where the government started eliminating judges’ whose judgement it didn’t like. That was a different age—the government eliminated the laws which didn’t favour it, too![13]

When Chief Justice Ray was to superannuate, Justice Mirza Hameedullah Beg[14], the second senior most puisne judge—and not the senior-most Justice Hans Raj Khanna—was recommended by Chief Justice Ray to be the CJI. Justice Khanna—who wrote the majority judgement in the Fundamental Rights case[15] and also frustrated the government in ‘Habeas-corpus case’[16] by the dissent which is now regarded one of the best in the history of the court[17]—resigned, but, as Mr. Nariman writes, ‘in a blaze of glory’[18].

There have always been efforts from the other pillars of the state to mould the judiciary—obviously for their favour. There are instances since inception of the democracy where executive and legislative actions have aspired to affect the judiciary, but judiciary has always stood with the tools of self-regulation, self-restraint and self-control. There have always been appointments that have led stake-holders raise their eye-brows. Justice Beg after his retirement was appointed the Chief of Minority Commission, a post he held for almost eight years. He was appointed the editor of National-Herald, a newspaper owned by congress party. One frequently mentioned among these is the example of Justice Rangnath Misra who headed the commission to enquire the 1984 anti-sikh riots, and was alleged to help the leaders involved. He was later appointed the first chairman of NHRC, and also sent to Rajya Sabha as a member of the congress party.

The most curious is the unprecedented case of Justice Bahrul Islam. He was a member of Rajya Sabha from Indian National Congress; he resigned from the parliament and was appointed a judge in the Guwahati High Court. After he retired from high court, he was again appointed a judge in the Supreme Court! After his judgement in a case relating to former Bihar chief minister, he resigned, again to be elected to Rajya Sabha on congress party ticket.

The judiciary, with the four Judges’ cases and through other reforms, has taken the effective control in its own hands with time. There may be debates over the merits of collegium system, but it has certainly minimised the executive interference at least in judicial appointments and administration. But the institution is made of the individuals who constitute it and doesn’t go unaffected. Justice Chelameshwar was the only dissent in the NJAC case, he was also the most senior judge among the four in the judges’ presser. As a matter of fact, Justice Chelameshwar was senior to Justice JS Khehar in the overall seniority of high court judges and only because he was appointed later to the supreme court, he could not become the CJI. Justice Dipak Misra and Justice Chelameshwar were appointed to the Supreme Court on the same day, but because Misra, J. was administered the oath first, he went on to become CJI. The issues of the press-conference had implications arising out of the actions by Justice Chelameshwar as well. Justice Chelameshwar, indeed a great judge, but had in a matter directed it to be listed before a bench of particular judges, the chief justice being the master of roster is the sole authority to do which.

The institution must be seen beyond the position of individuals who constitute it. In reciprocity to the attempts of executive, there have been judges who have acted in conformity with the politics of their times. Justice Hidayatullah, former Chief Justice of India, took first supersession as an attempt to produce “not forward-looking judges but judges looking forward to their future.” Justice Ray, after being appointed CJI sought a review of Keshavanand Bharati, but thanks to the sheer brilliance of eloquent Nani Palkhivala, who persuaded 12 out of thirteen presiding judges (of course except Ray, CJ.) after rigorous argument that it was not required and the review was never taken up.


The questions against nomination of Justice Gogoi to Rajya Sabha are mostly from the people who were hailing him after the presser, while the people defending him are those who had ridiculed the presser then. But the observation, ‘that the citadel never falls except from within’ would apply here as well. While sitting in the matter of Rojer Mathew vs South Indian Bank Ltd, Justice Gogoi had noted the post retirement appointment of judges as a ‘scar on judiciary’. In the judgement authored by him, he also observed, ‘The Central Government is the largest litigant before the tribunals constituted under various statutes. The independent functioning of the tribunals stands compromised where the executive has the controlling authority in the selection of members to the tribunals. The executive is often a litigant before and has an interest in the disputes which are adjudicated by the tribunals.’ If judicial members were to be appointed and reappointed by the executive, it would affect the independence of the tribunals.

Justice Gogoi, considered a tough judge, had a very controversial term as Chief Justice of India, with the allegations of sexual harassment from a female staffer, a matter in which he himself sat as a judge and ordered inquiry. He was accused of violation of the judicial principle of nemo judex in causa sua, that no one can be a judge in his own case. This also damaged his reputation of being a revolutionary judge. It was antediluvian to a judge with thoughts that "revolution, not reform" was needed to keep the institution of judiciary serviceable for the common man.

His nomination is being seen in connection with the judgement of Ayodhya land dispute. With utmost respect to the majesty of the hon’ble court, I’m no authority to question the judgement and doubting it would be doubting the court which comprised of four other honorable judges along with learned Justice Gogoi. Justice Gogoi has said that he would speak in detail about his acceptance of the nomination after taking oath.

No matter whatever reasons the learned Justice would observe and whatever reasons actually would be, it would certainly cast shadows over otherwise brilliant judgements delivered by him; that why a judge went against his principles within a time as less as four months of his retirement.

Justice Sathasivam, even before him was made Governor after his retirement. Irrespective of the party in power, power has a character which is similar for all, and it best knows its interests. The politics knows the language of parallels, the party in power would have past instances to quote as would have the opposition. There may be people who may hail a judge once and ridicule him the other time. But there are also the people who will find that neither that presser, nor this appointment—how so bonafide they be—was for the betterment of the institution. More than that, is this not unbecoming of a Justice?

And yet again, judiciary as an institution and the people who constitute it must stick by the principles of self-restriction and institutional morality for the institution to flourish and survive. Because we must always remember the lesson that the citadel never falls except from within…

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[1] Chief Justice of India, 2018-19.

[2] ‘Independent journalists, noisy judges need of the time’, available at: https://www.thehindu.com/news/cities/Delhi/independent-journalists-noisy-judges-need-of-the-time/article24403592.ece (last visited on October 21, 2020).

[3] M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, SCC Online 2019 SC 62.

[4] Four SC judges air differences with CJI Misra, available at: https://www.thehindu.com/news/national/four-sc-judges-air-differences-with-cji-misra/article22432428.ece (last visited on, October 25,2020).

[5] Former Chief Justice Ranjan Gogoi Nominated To Rajya Sabha By President, available at: https://www.ndtv.com/india-news/former-chief-justice-ranjan-gogoi-nominated-to-rajya-sabha-by-president-kovind-2195802 (last visited on October 21, 2020).

[6] Chief Justice of India, 2017-18.

[7] Fali S. Nariman, God Save the Honourable Supreme Court (Hay House, New Delhi, 2018).

[8] Ibid.

[9] Chief Justice of India, 1973-77

[10] Supra note 8 at 1.

[11] Rustom Cavasjee Cooper vs Union of India, 1970 AIR 564.

[12] Kesavananda Bharati v. State of Kerala and Anr, AIR 1973 SC 1461.

[13] Prashant Bhushan, The Case that Shook India (Penguin India, New Delhi, 2018).

[14] Chief Justice of India, 1977-78.

[15] Supra note 13.

[16] Additional District Magistrate, Jabalpur v. S. S. Shukla Etc, 1976 AIR 1207.

[17] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[18] Supra note 8 at 1.