SEALED AND DELIVERED
{ONE}
WHEN THE INDIAN EXPRESS GROUP picked Ranjan Gogoi—the second-most senior judge of the Supreme Court at the time—to deliver the third Ramnath Goenka Memorial Lecture, in July 2018, few progressives questioned the choice.
While introducing Gogoi, Raj Kamal Jha, the editor-in-chief of the Indian Express, showered praise upon the soon-to-be Chief Justice of India. He said that both journalists and members of the judiciary had to work “without fear or favour” to do their job well, which was how he believed Gogoi had conducted himself.
Jha said that there could not be a more fitting tribute to Ramnath Goenka—the founder of the Indian Express. “One thick red line in the newsroom which we tell all our reporters is never impute a motive to a judgment or a judge,” Jha said. “I’m going to push that line and I’ll take some liberty here. Justice Gogoi’s work and his words reinforce the feeling, reinforce the perception that … the search for justice is without fear or favour. Be it from the high court in Guwahati to the Punjab and Haryana High Court to the Supreme Court or to a lawn on a winter morning in January, Justice Gogoi has always pushed to bridge the gap between what he calls constitutional idealism and constitutional realism.”
The lawn Jha was referring to was the venue for a press conference, held on 12 January that year, by four Supreme Court judges, including Gogoi. For the first time in the history of the apex court, four sitting judges came together to address the media. They publicly raised their grievances with the manner in which the then CJI, Dipak Misra, was running the court. Misra’s controversial decisions in favour of the Bharatiya Janata Party-led central government, and allegations that he was assigning crucial cases involving the government to judges who were likely to favour it, had sparked widespread criticism. Gogoi, who was supposed to succeed Misra as chief justice, was hailed for his courage and people speculated if his actions might jeopardise his elevation to the top post. Gogoi became a hero, engendering expectations of a CJI who could restore the Supreme Court’s reputation as a guardian of the Constitution.
In the lecture—a lengthy speech with many academic digressions—Gogoi made several remarks that pleased his liberal admirers. He quoted an article in the Indian Express that said that “independent judges and noisy journalists are democracy’s first line of defence.” Then, Gogoi said, “I agree but will only suggest a slight modification in today’s context—not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges.” The next day, Gogoi’s quote made headlines in several newspapers.
However, soon after Gogoi became the CJI in October 2018, he began making noise for very different reasons. Within days of assuming his new position, he was faced with a case that could have far-reaching consequences for the Narendra Modi government: the Rafale deal, involving the Indian government’s purchase of 36 fighter aircraft from the French company Dassault Aviation. A three-judge bench led by him heard four petitions challenging the intergovernmental agreement for the purchase between India and France.
Gogoi’s actions in the case were quite inexplicable. The opposition had alleged, among other things, that the government had artificially escalated the cost of the aircraft, which benefitted the corporations involved. Defying the principle of transparency, Gogoi sought the pricing details in a sealed envelope, and then held an informal “interaction” with air-force officers. Ultimately, in December that year, the court dismissed the petitions. The final judgment referred to a report by the comptroller and auditor general that had not yet been tabled before parliament and was not available in the public domain.
“We are satisfied that there is no occasion to really doubt the process, and if even minor deviations have occurred, that would not result in either setting aside the contract or requiring a detailed scrutiny by the Court,” the majority opinion, authored by SK Kaul on behalf of Gogoi and himself said. “We find no reason for any intervention by this court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government.” The third judge, KM Joseph, wrote a separate opinion largely concurring with the majority.
The court explained its actions citing “national security.” The judgment said, “The scrutiny of the challenges before us, therefore, will have to be made keeping in mind the confines of national security, the subject of the procurement being crucial to the nation’s sovereignty.” It remains anyone’s guess how revealing details of the pricing of the aircraft endangered national security. Effectively, the three-judge bench dismissed petitions seeking an inquiry into grave allegations of government corruption without any detailed examination of the key questions raised.
The expectations of Gogoi died down, and people began to speculate about what had gone wrong. But those who had followed Gogoi’s career closely never expected him to be an agent of change in the Supreme Court. “He was a man with a quick mind, a man who cut through a lot of nonsense, he was decisive,” the senior advocate Sanjay Hegde told me. “But one never saw a great judicial philosophy one way or the other. Once he became chief justice, there were lots of hopes because of the standing up to Dipak Misra. But then it became clear that the instinct to make a ruling, and then stick by it, was more dominant than anything else. And when his instincts allied too closely with the government, people began making their assessment.” Even as I spoke to Gogoi’s friends, family and colleagues over the last year, virtually no one spoke of a commitment to an idea of justice. Born to an illustrious family, Gogoi was never short of connections in the legal and political world. Combining privilege and ambition with an inclination for efficiency, Gogoi rose meteorically through the judicial ranks.
Through his tenure as the CJI, Gogoi heard several cases in which people were left wondering whether this was the same judge who had been part of the press conference against Misra. Many of the matters he heard, besides the Rafale case, progressed in a way quite convenient for the government. This included the Ayodhya temple dispute, the reading down of Article 370 in Jammu and Kashmir, Alok Verma’s removal as the director of the Central Bureau of Investigation, and several others. There was an apparent shift in the attitude of pro-government television channels, such as Republic TV and Times Now, towards him. While these channels had criticised the four judges for holding the press conference, they became Gogoi’s staunch defenders when, during his tenure as CJI, allegations of sexual harassment against him came out.
There are several theories among legal circles about what could have been the reason for Gogoi’s trajectory from a perceived liberal maverick to the favourite chief justice of the government’s cheerleaders. In January 2019, the former Supreme Court judge Markandey Katju made serious accusations against Gogoi that added to the speculation. Katju called for Gogoi to “come clean.” He wrote that, in 2016, when TS Thakur was the CJI, the collegium—a committee of the five most senior Supreme Court judges—had recommended the transfer of Valmiki Mehta, then a judge of the Delhi High Court, because of “some very serious charges” against him. Gogoi’s daughter is married to Mehta’s son. “What I have heard,” Katju wrote, “is that Justice Gogoi, who was then a puisne Judge in the Supreme Court, went to PM Modi or some other high ranking Minister in Modi’s cabinet and begged that his sambandhi”—relative—“be not transferred.” If this was true, Katju said, “then Gogoi has obviously taken an obligation from the BJP govt which he has to return.” Some people I spoke to speculated whether the sexual harassment allegations facing Gogoi had made him vulnerable to pressure, causing him to act ever more favourably towards the government as his tenure progressed.
“You’ll never have a smoking gun for any of this,” the legal scholar Gautam Bhatia told me. “But honestly, it’s very hard to explain a lot of things he did. A lot of things that simply do not make sense unless you think that he was following instructions in some respect. Even accounting for the Supreme Court’s incoherence and lack of logic, there are things that just can’t be explained without thinking that there’s something wrong here.”
Gogoi’s most valuable gift to the Bharatiya Janata Party government was clearly the update of Assam’s National Register of Citizens, which provided the government a roadmap for a national policy that threatens the citizenship of India’s nearly two hundred million Muslims.
Gogoi’s most valuable gift to the Bharatiya Janata Party government was clearly the update of Assam’s National Register of Citizens, which provided the government a roadmap for a major national policy. From April 2013 to October 2019, Gogoi heard several cases related to the NRC. Through them, he laid down a framework for the detection and possible deportation of those branded “foreigners” in the state. The exercise proposed stripping millions of individuals of their Indian citizenship, after subjecting them to a gruelling and hyper-technical evaluation process that allowed no room for inevitable discrepancies. The costs of this punishing process were grave and often irreversible, but Gogoi seemed to show little consideration for those who fell by the wayside. Instead, he led the Supreme Court bench that monitored, supervised and administered a project that was supposed to have been the responsibility of the government.
However, any benefit Gogoi’s supervision of the project might have caused the BJP could be inadvertent. Assam’s politics since Independence have in large part been driven by an anti-immigrant movement that has sought the identification and deportation of illegal immigrants. Gogoi hails from the Ahom, one of the communities that have led the movement. The anti-immigrant sentiment held by many of the state’s dominant communities was reflected in the hearings Gogoi held in the NRC cases. The activist Harsh Mander, who had filed a petition about the inhuman living conditions in the state’s detention centres—part of prisons where those declared to be foreigners are being held—found Gogoi using his petition to seek more detentions and expediting deportations. Mander filed an application seeking Gogoi’s recusal from the case, reasoning that the judge’s remarks during the hearings showed his “subconscious bias” on the issue—an application that Gogoi dismissed with disdain.
Gogoi’s demands and deadlines served well the ruling BJP governments at the centre and in Assam. The case gave the BJP a roadmap for a far more ambitious and insidious plan: a countrywide NRC. The BJP began turning other cogs in its machine. The Modi government passed executive orders that introduced religious distinctions into the rules governing entry into India. It passed the Citizenship (Amendment) Act, which provides members of most non-Muslim communities previously judged to be illegal immigrants an easy path to citizenship. Together, the CAA and the spectre of a countrywide NRC threaten the citizenship of India’s nearly two hundred million Muslims. The government has already begun gathering data for a National Population Register, which would be used in preparation of the NRC. With ongoing protests across the country against the BJP’s actions and plans, Gogoi’s successor as the CJI, Sharad Arvind Bobde, is heading the bench currently hearing pleas challenging the constitutional validity of the CAA.
“Gogoi was a judge; he is supposed to rise above his personal interests and prejudices,” Sumita Hazarika, a Supreme Court advocate, told me. “But I don’t think he did that with the NRC. If he felt so strongly about it, if he couldn’t detach himself from the issue, more the reason for him to not do the case in the first place. Coming from Assam, he seems to have his own personal agenda, which he was trying to fulfil through the court and using his power as a judge. I think he should not have dealt with the matter at all.”
“The fact is that he was the most disappointing chief justice because we had such high expectations of him,” the senior advocate Chander Uday Singh said. “As far as I’m concerned, the less said about Gogoi, the better. He’s an unmitigated disaster, one of the worst chief justices we’ve ever had.”
{TWO}
BORN ON 18 NOVEMBER 1954 , in the Dibrugarh district of upper Assam, Ranjan Gogoi enjoyed considerable social, economic and political privilege. Gogoi’s ancestors on his mother’s side can be traced to the Ahom dynasty, which ruled over Assam for about six hundred
