FIXING JUSTICE FOR THE JUDGE

“Justice for the Judge” was a Special Leave Petition filed by Mr. Ranjan Gogoi in the court of ‘We the People’. From what I can see in the many reviews and articles that has been written, ‘We the People’ have overwhelmingly dismissed it.

Mr.Gogoi sought to know if the title of the book is apt and whether Judges in India get Justice? I have tweaked the title of the book a little and titled this article on what could have been more apt title for the book.

Mr.Gogoi wrote, “This book is a frank revelation of what transpires behind the majesty of the Courtroom;………………..The contents are revealing because it is necessary for the average citizen to have more than a glimpse of the working of the institution of judiciary.” Never would anyone have imagined the glimpse that Mr.Gogoi was going to show was ‘filth’ in the backyard of the Supreme Court. In fact, Mr.Gogoi indulged in mudslinging against some ‘select’ judges and exposed the filth some carried.

I am not going to discuss on the Ayodhya or the NRC cases which are the ‘bullets’ dodged by his predecessors which he happily bit with his ‘iron will’. This article is specifically on the ‘in house procedure’ and why the Judges of the Constitutional Courts get away without any action even after trampling Justice and its procedures under their boots, taking Justice back to the feudal ages. ‘Injustice anywhere is a threat to Justice everywhere’ and if Judges do not set examples, we run the risk of losing the faith of ‘We the People’.

Independence of Judiciary is a part of the ‘Basic Structure doctrine’ and in S.P.Gupta, Justice Bhagwati wrote as to what was required for an Independent Judiciary: “Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says, "Be you ever so high, the law is above you." This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution. In short, Independent Judiciary meant that ‘Rule of Law’ is Supreme. No one would be above the law, not even the Judges.

Does this principle "Be you ever so high, the law is above you", apply to the Judges of the Constitutional courts? Did it apply to Mr.Gogoi ? A deeper analysis of this issue will say how miserably have the Indian Judiciary failed in ‘curtailing corruption within the Judiciary’. However, to understand how we reached where we are will require us to go back in History.

 COLLEGIUM: REWRITING THE INDIAN CONSTITUTION

The inhouse procedure was adopted by the full court of the Hon’ble Supreme Court in December 1999 and to understand the need for the same, we need to go back further down the history. The Supreme Court ‘rewrote the Constitution in 1993’ in the name of ‘interpretation’ and devised what we today know as a ‘collegium’.   Law is always evolving, it never can be static and this will explain why that route was chosen then and why is there a reluctance to ‘evolve’ and why everyone finds safety in law being a constant when the question is on ‘Judicial Accountability’?

Until 1975, the Executive and the Judiciary seemed to have no issues with each other. During emergency about 16 High Court Judges were transferred and Justice Sankalchand Himatlal Sheth, Judge of High Court of Gujarat challenged his transfer. The true meaning of the word “consultation’ occurring in Articles 124 and 217 of the Constitution of India had to be interpreted. Before Sankalchand, the Supreme Court had already interpreted the words ‘consultation’ as regards the appointments in Lower Judiciary in Chandramouleshwar Prasad as well as in Samsher Singh. The Supreme Court more or less did not interfere with the words in the Constitution and did not interfere with the powers of the Executive though it opined that the opinion of the Chief Justice carries great weight. It was also stated that “It seems to us that the word 'consultation' has been used in Article 222 as a matter of constitutional courtesy in view of the fact that two very high dignitaries are concerned in the matter, namely, the President and the Chief Justice of India. Of course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly".

In March 1981, the then Law Minister of the Government of India sent a circular dated to Chief Ministers of various States. Chief Ministers were requested to obtain from all the Additional Judges consent to be appointed as permanent Judges in any other High Court in the country. It also advised Chief Ministers to obtain similar consent letters from persons who have already been or may in future be proposed for initial appointment as Judges of the High Court. The said letter was challenged in S.P. Gupta, on the ground it was a direct attack on the independence of the judiciary which is a basic feature of the Constitution. The case was heard by a 7 Judge Bench and came to be known as First Judges case, but the Supreme Court by a 4:3 majority held on to the view in Sankalchand.

With increased pressure on the Judiciary and the slow pace of appointments in the Judiciary, a PIL filed by Subhash Sharma came up for consideration before a three Judge Bench who doubted the view in S.P. Gupta and therefore referred two questions to a larger Bench “namely, the position of the Chief Justice of India with reference to primacy and, secondly, justiciability of fixation of Judge strength” and the Judges further clarified that “apart from the two questions which we have indicated, all other aspects dealt with by us are intended to be final by our present order".

The Chief Justice constituted a Bench of 9 Judges to examine the two questions and this case came to be known as the Second Judges Case. What happened thereafter was a rewriting of the Constitution. The Bench strayed from the two questions and went on to rewrite the Constitution in a way that B.R.Ambedkar himself did not foresee. The Veto Power of the Chief Justice that was kept away by the Constituent Assembly and thin red line respected by the Supreme Court in Sankalchand and S.P. Gupta was crossed.

The Law is always evolving and if anyone needs to know why the Supreme Court might have crossed the thin red line, the explanation would lie in Executive actions. The Executive had superseded three Judges who favoured the Basic Structure Doctrine while appointing the Chief Justice of India, it further got emboldened by the decisions of the Supreme Court in Sankalchand and S.P. Gupta, several doubtful appointments were made through acting Chief Justices who were confirmed only after they made those recommendations. These manipulations by the Executive would have played on the Judges mind when they decided to cross that thin red line.

The Judges were themselves aware of what they were doing and how brutally they had rewritten the Constitution. The dissent of Justice Punchhi is worth reading not for his dissent, but his shock and exasperation at how things spiralled from a seemingly routine reference that he made in Subhash Sharma. After having written his dissent, he wrote “I agree to the disposal of the reference leaving however a note of skepticism - Was it worth it?”. Technically, Justice Punchhi continued to opine that the Judgment in the Second Judges Case is obiter and not Ratio, for the Court did not have any power to go beyond the questions that were referred to it.

The Second Judges Case not just rewrote the Constitution, but also legislated on the modality of how Judges would be appointed in this Country, a method unique in the world, Judges appointing Judges. ‘Consultation’ was interpreted as synonymous to ‘concurrence’ and Chief Justice was substituted by the Chief Justice along with his 2 senior most colleagues. The Reference made by the President in 1998 was known as the Third Judges Case which reiterated the position of the Supreme Court in the Second Judges Case and expanded the Collegium to four senior most judges.

'Power corrupts, Absolute power corrupts absolutely’, the Judiciary is no exception. The rewriting of the Constitution was carried out by the Judiciary with a hope that Judges will not act like their executive counterparts. The system worked well when the executive remained weak. When the executive gained in strength, in spite of insulation offered by the judicially rewritten Constitution, the Judiciary became its own enemy with neither discipline nor the ability to rein in errant Judges. The Judges did not show the same resolve to take on ‘judicial corruption’ in the same manner it showed when it rewrote the Constitution to take care of ‘executive interference'.

CORRUPTION WITHIN THE JUDICIARY

Many retired Judges of the Supreme Court admitted to corruption within Judiciary. The Attorney General came out with a list of those Judges while arguing the Contempt of Court case of Adv.Prashant Bhushan. The Former Law Minister, Mr.Shanti Bhushan even filed an affidavit in the Hon’ble Supreme Court stating:

"In the applicant’s opinion, eight were definitely corrupt, six were definitely honest and about the remaining two, a definite opinion cannot be expressed whether they were honest or corrupt. The signed lists identifying these eight, six and two Chief Justices of India are being enclosed in a sealed cover which is being annexed hereto as Annexure B."

Since this article is about Mr.Gogoi’s book, let’s see what Mr.Gogoi says about corruption. “Is there corruption in the Supreme Court as well?” Sudhir Chaudhary, Editor in Chief, Zee News asked Ranjan Gogoi in the exclusive interview. To this, Mr. Gogoi replied saying, “Corruption is as old as society. Corruption has become a way of life – an acceptable way of life…..Judges don’t drop from heaven”. This is what a retired CJI says about the Judges of the Supreme Court and not of the High Courts or the lower Judiciary!

The Bombay Bar Association revolted twice on the ever-rising corruption within the Judiciary. In C.Ravichandran Iyer, the Hon’ble Supreme Court, for the first time tried to device a procedure so as to prevent the ignominy of dealing with Bar Association Resolutions. The Supreme Court in C.Ravichandran Iyer held that “Bearing all the above in mind, we are of the considered view that where the complaint relates to the Judge of the High Court, the Chief Justice of that High Court, after verification, and if necessary, after confidential enquiry from his independent source, should satisfy himself about the truth of the imputation made by the Bar Association through its office bearers against the Judge and consult the Chief Justice of India, where deemed necessary, by placing all the information with him. When the Chief Justice of India is seized of the matter, to avoid embarrassment to him and to allow fairness in the procedure to be adopted in furtherance thereof, the Bar should suspend all further actions to enable the Chief Justice of India to appropriately deal with the matter. This is necessary because any action he may take must not only be just but must also appear to be just to all concerned, i.e., it must not even appear to have been taken under pressure from any quarter. The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nibbing in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned. The independence of judiciary and the stream of public justice would remain pure and unsullied. The Bar Association could remain a useful arm of the judiciary and in the case of sagging reputation of the particular Judge, the Bar Association could take up the matter with the Chief Justice of the High Court and await his response for the action taken thereunder for a reasonable period.

In case the allegations are against Chief Justice of a High Court, the Bar should bring them directly to the notice of the Chief Justice of India. On receipt of such complaint, the Chief Justice of India would in the same way act as stated above qua complaint against a Judge of the High Court, and the Bar would await for a reasonable period the response of the Chief Justice of India.

It would thus be seen that yawning gap between proved misbehaviour and bad conduct in consistent with the high office on the part of a non cooperating Judge/Chief Justice of a High Court could be disciplined by self-regulation through inhouse procedure. This inhouse procedure would fill in the constitutional gap and would yield salutary effect. Unfortunately, recourse to this procedure was not taken in the case at hand, may be, because of absence of legal sanction to such a procedure.

IN-HOUSE PROCEDURE: USURPING THE CONSTITUTION EXTRA-JUDICIALLY

The Judiciary which had rewritten Constitution in the Second Judges Case did so while interpreting the Constitution in a matter pending before it. However, when it came to the In-house Procedure, the Constitution itself came to be ignored. Legislation is the exclusive domain of the Legislature, but the Judiciary blatantly indulged in legislation in a manner that was outside the scope of Art.141 of the Constitution. There were no pending matters before the Court. One fine day in December 1999, the full court of the Hon’ble Supreme Court adopted the ‘Report of the Committee on in house procedure’, and then declared that this would be the procedure to deal with complaints against the Judges. The In-house Procedure is more secretive than the election of the Pope through the papal conclave. The Chief Justice makes his own call and this cannot be questioned by anyone. From Judges appointing Judges, we advanced to Judges protecting Judges and no one could ever question the procedure even when there is a prima facie case made out against an errant Judge.

The In-house Procedure has never been effective. It is only a ‘paper procedure’ to show that action can be taken against errant Judges and whenever the In-house procedure has been questioned in the Supreme Court, the Supreme Court itself has discarded it in no uncertain terms. In Indira Jaising, though the Petition itself was seeking for a copy of the report of the Inhouse committee by a third party, the Supreme Court held that “The Committee referred to by the petitioner is stated to have been constituted as a part of In-House procedure. A Judge cannot be removed from his Office except by impeachment by a majority of the House and a majority of not less than 2/3rd present and voting as provided by Articles 124 and 217 of the Constitution of India. The Judges (Inquiry) Act, 1968 has been enacted providing for the manner of conducting inquiry into the allegation of judicial conduct upon a Motion of Impeachment sponsored by at least 100 Lok Sabha members or 50 Rajya Sabha members. The Presiding Officer of the concerned House has the power to constitute a Committee consisting of three persons as enumerated therein. No other disciplinary inquiry is envisaged or contemplated either under the Constitution or under the Act. On account of this lacuna In-House procedure has been adopted for inquiry to be made by the peers of Judges for report to the Hon'ble the Chief Justice of India in case of a complaint against the Chief Justices or Judges of the High Court in order to find out truth of the imputation made in the complaint and that In-House inquiry is for the purpose of his own information and satisfaction. A report made on such inquiry if given publicity will only lead to more harm than good to the institution as Judges would prefer to face inquiry leading to impeachment. In such a case the only course open to the parties concerned if they have material is to invoke the provisions of Article 124 or Article 217 of the Constitution, as the case may be. It is not appropriate for the petitioner to approach this Court for the relief or direction for release of the Report, for what the Chief Justice of India has done is only to get information from peer Judges of those who are accused and the report made to the Chief Justice of India is wholly confidential. The said report is only for the purpose of satisfaction of the Chief Justice of India that such a report has been made. It is purely preliminary in nature, ad hoc and not final. If the Chief Justice of India is satisfied that no further action is called for in the matter, the proceeding is closed. If any further action is to be taken as indicated in the In- House procedure itself, the Chief Justice of India may take such further steps as he deems fit. Therefore, in the hierarchy of the courts, the Supreme Court does not have any disciplinary control over the High Court Judges, much less the Chief Justice of India has any disciplinary control over any of the Judges. That position in law is very clear. Thus, the only source or authority by which the Chief Justice of India can exercise this power of inquiry is moral or ethical and not in exercise of powers under any law. Exercise of such power of the Chief Justice of India based on moral authority cannot be made subject matter of a writ petition to disclose a report made to him.

In Addl.District & Sessions Judge ‘X’, the Supreme Court was again called upon to look into the in-house Procedure and the Hon’ble Supreme Court held that “We are therefore satisfied to hold that those who are liable to be affected by the outcome of the ‘in-house procedure’ have the right to seek judicial redressal on account of a perceived irregularity. The irregularity may be on account of the violation of the contemplated procedure or even because of contemplated bias or prejudice. It may be on account of impropriety. The challenge can extend to all subjects on which judicial review can be sought".

JUDICIAL MISCONDUCT / CORRUPTION: A MONSTER THAT CANNOT BE TAMED BY THE SUPREME COURT

This is the first time, the Supreme Court seemed to have opened a window in Addl.District & Sessions Judge ‘X’. However, the High Courts continue to shut that window. Recently, the Kerala High Court in Mathew Pulikunnel, relied on Indira Jaising and ignored the right that was specifically granted to the affected party by Addl.District & Sessions Judge ‘X’. In fact, the matters before the Kerala High Court on ‘Judicial Misconduct’ would point out how even the Supreme Court remains powerless when it comes to “Judicial Corruption / Misconduct” in the High Courts. The recent demolitions of illegal buildings in Kerala witnessed by the country were on the basis of the Supreme Court Order which found the building permits granted to these buildings to be illegal. The whole issue started with the Municipality issuing a show cause notice which was stayed by a Single Judge and the final order was in favour of the builders on a ground that deviated from ‘Rule of Law’. The appeal filed by the State, the Division Bench after having recorded the finding of ‘illegality’ deviated from the Rule of Law and allowed the builder to take advantage of his own wrong. The Review filed by the State specifically pointing to the deviation from the ‘Rule of Law’ was dismissed and the builder hoped the Supreme Court would take a lenient view. The Supreme Court upheld the Rule of Law and about 300 people became homeless. The People blamed the Supreme Court, but the fault lay squarely with the High Court which deviated from Rule of Law. Look at what Judicial Corruption / Misconduct at the High Court has translated into: A wrongful perception of the Supreme Court before “We the People”, 300 fresh direct litigations and connected indirect litigations!!!

What is shocking is the protection given by another Judge of the High Court of Kerala to one of the accused builder. This builder had filed for a ‘Inter State Bail’ before the High Court of Madras, which was granted and then the Madras High Court recalled that Bail because it was established that the Builder had obtained the orders by ‘playing fraud upon the Court’. The builder filed a Bail Application in the High Court of Kerala and the Judge who heard the matter after hearing it sat on the Bail order for 140 days (in legal terms ‘reserved for orders’) in violation of the orders of the Hon’ble Supreme Court as well as the High Court of Kerala requiring disposal of Bail Applications in 7 days. No explanation was given by the Judge in the Bail order and the residents of the building demolished very well knew that the Judge was waiting for the retirement of Justice Arun Mishra in September 2020. Any appeal from the Bail order would have landed on the Bench of Justice Arun Mishra who was hearing all matters pertaining to the demolition.

If anyone thought that this is mere coincidence, think again. ‘We the People’ watch the courts intently. The People noticed that the Builder continues to enjoy many more such orders from the Judges in the Kerala High Court. The Builder recently got a stay order on an order passed by the Kerala Real Estate Regulatory Authority which was appealable and a Writ being not maintainable. Assuming, it was a human error, what happened next was the continuation of the Stay order even when the Court had ordered a notice and the same remained unserved on the affected party and the ‘stay’ itself had expired. One line order of continuation of a stay order without reviving it. This Writ was then withdrawn without serving any notice to the Affected party and when the Affected party approached the Judge to recall his order citing several Supreme Court orders, the Judge brushed it aside pointing to his ‘Judicial Discretion’!!!

The Supreme Court recently dealt with the issue of showing undue favour to a party under the guise of passing Judicial Orders in Muzaffar Husain vs The State Of Uttar Pradesh and stated as under:

"In our opinion, showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration. It is often said that “the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion.  

A complaint against the Judges who deviated from Rule of Law did nothing and the Writ Petition filed by the complainant was dismissed on the basis of Indira Jaising. The complainant is pursuing with his remedies and this will ultimately land at the Hon’ble Supreme Court. We the People are intently waiting to see if the principle "Be you ever so high, the law is above you", apply to the Judges of the Constitutional courts?

Since this article is focussed on Mr.Gogoi, let me point out how he dealt with the issue of Judicial Misconduct / Corruption. Our Judicial institution is still largely working around the C.P.C and Cr.P.C. When it comes to laws that are not regularly heard of or litigated, the task is a lot more tougher. After the Mangalore Air Crash, I spent my time learning the technicalities of Aviation Law. I thereafter filed a PIL in the Bombay High Court on the issue of ‘obstacles’ around the airport and after 2 years of persistent efforts, I was in a position to make the Judges understand the enormity of legal violation and the direct threat to millions of lives. The Division Bench hearing the matter even directed the Maharashtra Legal Services Authority to grant Rs.10,000 to me to meet the expenses of the PIL. The Bench also ordered the demolition of one building and ordered the DGCA to pass final orders on 467 buildings that were in the ‘APPROACH’ surface of the airport. The Builder’s lobby in Bombay is one of the most powerful lobbies in the Country. All Writ Petitions filed by the Builders were all transferred to the Bench hearing the PIL except one. In that Petition, even before the notice was served on the affected party, the matter was disposed by a senior Judge of the Bombay High Court and that too in violation of a Statute. An in-house complaint was filed against the said Judge. The Senior Judge hearing the PIL retired and thereafter the PIL and all connected matters came to the Judge against whom the in-house complaint was filed. The Judge was asked to recuse from the matter because the petitioner and the Judge were Petitioner and Respondent in another matter pending before the High Court of Bombay. There was an absolute bar (it was not even a case of the Judge to exercise discretion on the question of recusal) on hearing the matter and yet the Judge went ahead. The Judge dismissed the PIL for the most bizarre reasoning. The PIL filed in 2014 were based on 2010 Aircraft Rules, whereas in 2015, the Airport Authority came out with new rules. This Judge therefore came out with a new legal proposition where the Rules applicable are not the ones that were in force at the time of the cause of action but a Rule that came to be formed thereafter. Unfortunately, the Judge did not even realise that the Rules around the Airport are standardised worldwide through the International Civil Aviation Organisation (ICAO) and any deviation need to be declared. India did not make any such declaration and are threatening International Air Safety norms. The height of buildings around the world is 45m plus airport elevation and in India it is 90m plus airport elevation. Internationally, the APPROACH area has to be free of obstacles or in other words, it has to be a zero-obstacle zone and in Mumbai it has 467 obstacles and many more were under construction. A SLP that was filed bringing all this to the notice of the Supreme Court. The matter came up before Mr.Gogoi who dismissed the PIL without hearing it saying how dare a complaint is filed against a ‘Judge’. In fact, Mr.Gogoi claimed to come to the court reading all the petitions and making notes and he had no clue of what the matter was and he was briefed in the Court by his brother Judge. Justice Gita Mittal who was superseded and found ineligible by Mr.Gogoi saved Delhi airport by ordering demolition of 369 obstacles around the Delhi Airport which was promptly carried out and still being carried out. Mr.Gogoi knew a bit about aviation and mentioned how visual landing is carried out in Lengpui airport which was a table top airport like Mangalore. My predictions on the Mumbai airport came true when on 28 June 2018 (inside 3 months of the Judgment dismissing the PIL) a small aircraft crashed onto the suburbs of Ghatkoper killing 4 on board and a pedestrian. In fact, the pilots are trained to ditch the aircraft in uninhabited places during emergency and this aircraft was ditched in an under construction site which was still under construction because of the stay granted in the PIL. Mumbai Airport is one of the most dangerous because there are no uninhabited spaces around the airport. Mumbai airport, is in fact having one of the most densely populated spaces around it and there are too many obstacles in APPROACH that an air accident involving the big commercial aircrafts is only a matter of time. If anyone wants to know if Judicial Misconduct / Corruption would kill, they only need to look at the Ghatkoper Crash and wait for the inevitable air tragedy that is looming in the skies of Mumbai Airport that will take the world to take note of it.

The Hon’ble Supreme Court in R.R.Parekh set out parameters of what could be considered as Judicial Misconduct / Corruption: “The issue of whether a judicial officer has been actuated by an oblique motive or corrupt practice has to be determined upon a careful appraisal of the material on the record. Direct evidence of corruption may not always be forthcoming in every case involving a misconduct of this nature. A wanton breach of the governing principles of law or procedure may well be indicative in a given case of a motivated, if not reckless disregard of legal principle. In the absence of a cogent explanation to the contrary, it is for the disciplinary authority to determine whether a pattern has emerged on the basis of which an inference that the judicial officer was actuated by extraneous considerations can be drawn. Cases involving misdemeanours of a judicial officer have to be dealt with sensitivity and care. A robust common sense must guide the disciplinary authority. At one end of the spectrum are those cases where direct evidence of a misdemeanour is available. Evidence in regard to the existence of an incriminating trail must be carefully scrutinized to determine whether an act of misconduct is established on the basis of legally acceptable evidence. Yet in other cases, direct evidence of a decision being actuated by a corrupt motive may not be available. The issue which arises in such cases is whether there are circumstances from which an inference that extraneous considerations have actuated a judicial officer can legitimately be drawn. Such an inference cannot obviously be drawn merely from a hypothesis that a decision is erroneous. A wrong decision can yet be a bona fide error of judgment. Inadvertence is consistent with an honest error of judgment. A charge of misconduct against a judicial officer must be distinguished from a purely erroneous decision whether on law or on fact. The legality of a judicial determination is subject to such remedies as are provided in law for testing the correctness of the determination. It is not the correctness of the verdict but the conduct of the officer which is in question. The disciplinary authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power. The circumstances let into evidence to establish misconduct have to be sifted and evaluated with caution. The threat of disciplinary proceedings must not demotivate the honest and independent officer. Yet on the other hand, there is a vital element of accountability to society involved in dealing with cases of misconduct. There is on the one hand a genuine public interest in protecting fearless and honest officers of the district judiciary from motivated criticism and attack. Equally there is a genuine public interest in holding a person who is guilty of wrong doing responsible for his or his actions. Neither aspect of public interest can be ignored. Both are vital to the preservation of the integrity of the administration of justice”.

The monster of Judicial Misconduct / Corruption has grown so big that even the Supreme Court seems to be helpless in dealing with it and consequently the Judiciary risks losing the confidence and faith of ‘We the People’.

Even when the Supreme Court has dealt with the issue of Judicial Misconduct and the issue of showing undue favour in the guise of Judicial orders in R.R.Parekh and Muzaffar Husain, these decisions involved the lower Judiciary. When it comes to the applicability of the said principle when the complaints are against High Court and Supreme Court Judges, the record has been a complete negation of the principle. The only silver lining in these decisions are that future Chief Justices were part of the Bench that delivered these decisions.

The Supreme Court have been reluctant when it came to Judges of Constitutional Courts. Justice Karnan was an exception and he himself had raised the issue of corruption in the Higher Judiciary and there too the Supreme Court found safety in numbers. When was a seven Judge Bench constituted for hearing a Contempt matter? There is no doubt what Justice Karnan did was unacceptable on papers, the fact remains that he had raised the issue of ‘corruption among sitting High Court Judges’ and no inquiry seems to have been done and even a sitting Judge was powerless when it came to getting even an inquiry, leave alone prosecution, against corruption in the Higher Judiciary.

“SEXUAL HARASSMENT COMPLAINT” – FIXING AND FREEZING JUSTICE

In his book, Mr.Gogoi admits of having been informed about the allegations on the evening of 19 April 2019 and a further information that an Art.32 Writ Petition would be filed on 20 April 2019. He concluded that ‘aggression would be the best form of Defence’ and he rang up the Advocate General, the Solicitor General and the President of the SCBA. On a Saturday, Mr.Gogoi himself sits along with Justice Arun Mishra and Justice Sanjiv Khanna “IN RE: Matter of Great Public Importance touching upon the independence of Judiciary – Mentioned by Shri.Tushar Mehta, Solicitor General of India”.

Right from the start, the rot to Justice was stinking. Injustice was not to the Chief Justice, but to the Victim. One, the Chief Justice openly admitted how he gets information about filing of a Writ Petition even before any such filing? When you ring up the Solicitor General, that is not called Mentioning. The Glossary given in the book defines what mentioning is and without even any such ‘mentioning’ happening, the matter is heard on a holiday. Would this mean that every allegation on an individual judge will be deemed to be an attack on the independence of Judiciary? Justice (Retd) Deepak Gupta in his farewell speech said “there is no difficulty in maintaining the independence, the integrity of the institution of judiciary as long as we think about the institution and not about the individuals”. The problem is when the Judges equate the Judges to the institution itself.

Mr.Gogoi, in his aggression sacrificed the faith of We the people on the Supreme Court of India as an Institution. Mr.Gogoi equated himself with the Supreme Court of India and sadly we did not have even one person in High Offices raise their voice. The Attorney General, the Solicitor General and the President of the SCBA were all silent to the blatant violation of principles of natural Justice where a Judge was Judging his own case and the fact that each one of them were called by the Chief Justice himself when they never had a brief on the issue from anyone else. Mr.Gogoi has now openly claimed that he chose aggression as the best form of defence. The aggression of a Chief Justice on a ‘vulnerable’ woman. Looks straight out from a scene in Mahabharata, except that we did not have Lord Krishna.

Mr.Gogoi says that the complaint was thereafter handed over to the next senior most Judge and it was Justice Bobde who dealt with it thereafter. Mr.Gogoi says that in-house procedure was complied with and then he himself reveals how the in house procedure itself was not complied with. On receipt of the Complaint, the CJI / or the Judge as the case may be dismiss it in limine if there is no substance in it. If the complaint is of serious nature, he would seek a response from the concerned Judge and if the response satisfies him, he can file it at that stage as well. The committee will be formed only when the CJI / Judge is not satisfied by the response of the Judge. In this case, Mr.Gogoi states that the committee was formed without following this procedure. Wasn’t Mr.Gogoi affected by the non-compliance with the procedure? The world could always draw an inference that there was a serious prima facie case which necessitated the formation of a committee. Wasn’t Mr.Gogoi so certain that he would be exonerated? Who else would suffer the ignominy of being found with a prima facie case against him necessitating the formation of a committee? The victim withdrew the complaint and it is publicly known that the actions were taken not just against her but her family members too. While Mr.Gogoi published the consent given by all the Judges of the Hon’ble Supreme Court as regards the in-house committee, he remained silent on the noises of dissent. There were reports that Justice Dr.D.Y.Chandrachud wrote a letter requesting the in-house committee to not proceed without the presence of the Victim. Mr.Gogoi has not made any reference to this letter. The in-house committee which consisted of two lady members were probably blind to the helplessness of the victim and the report as claimed by Mr.Gogoi exonerated him.

The reinstatement of the Victim in the Supreme Court also is pointed out by Mr.Gogoi as his magnanimity. The ‘Matter of Great Public Importance touching upon the independence of Judiciary’ caused so much damage to the Supreme Court that if the allegations were false, no compassion could ever be shown to the victim. But the fact is that in the name of compassion, not just the victim but even her family members who faced action were all taken care of.

If Mr.Gogoi was so certain that these allegations were frivolous, he could have filed a defamation proceeding than write a book. The book further damaged not just his case, but also the image of the Supreme Court further when Mr.Gogoi pointed out to the serious allegations against Justice V.K.Tahilramani and how no action was taken even by the CBI when it had a written request from the Chief Justice of India. If the CBI doesn’t take cognizance of a complaint sent from the Chief Justice of India’s office, do we even need to speak about the common man? If Mr.Gogoi was having the iron will he claimed to have, why did he not get the CBI to prosecute Justice Tahilramani just like the CBI is prosecuting Justice S.N.Shukla. In fact, all judicial work was withdrawn from Justice Shukla by the very person Mr.Gogoi accused – the then CJI Justice Deepak Misra. Who had an iron will, is for the people to decide for themselves. We also got to know from Mr.Gogoi that a certain judge got his interns to write judgments. Mr.Gogoi thereafter indulged in mudslinging. This meant that if a former chief Justice wants, he can do so because there are enough complaints written against the High Court Judges that if you want to show some ‘motives’, you can always go and pick which of those complaints you want.

Mr.Gogoi stated that he was called to the Bench when he was below the ‘age criteria’. He says exceptions was possible. But when it came to Justice Rajendra Menon who made recommendation of certain names for elevation who did not meet the ‘income’ criteria, Mr.Gogoi could not think of exceptions. Justice Menon consulted a former Chief Justice of the Patna High Court and not the president of the bar association to look for merit and there is no impropriety in it as it remains the prerogative of the Chief Justice and his collegium. The Constitution has provided for the basic qualification, where and when did the income criteria seep in? Can’t a committed but poor lawyer ever aim to be a High Court Judge?

Mr.Gogoi accused Justice Muralidhar of impropriety in the grant of bail. Every advocate is aware that Justice Muralidhar is known to be a fierce champion of Human Rights. “Deprivation of Liberty for a single day is a day too many” has been reiterated many times by the Hon’ble Supreme Court.

Mr.Gogoi trained his guns on Justice Ujjal Bhuyan who is probably one of the sharpest Judges we have in the High Court today.

Mr.Gogoi accused Justice Madan Lokur and pointed out how he had retained Justice Lokur in E-Committee even after his retirement. In other words, Justice Lokur ought to have been silent because he himself was a beneficiary of ‘doles’ all going from the hardworking taxpayer and not from the from Mr.Gogoi’s personal account.

To the question Mr.Gogoi wanted his readers to answer as to whether he fulfilled his mothers wishes, I would, without a doubt opine that he miserably failed to stand up to those standards. To me Mr.Gogoi is the worst the office of the Chief Justice of India ever saw and if we get someone to break this record, we will not have the Institution itself.

Mr.Gogoi clearly showed the people of India that Judges will appoint Judges and Judges will protect Judges no matter what the allegations. However, in the court of ‘We the People’ the Judiciary is losing its support faster than ever and the faith of people is shaken and is a big crack. It’s only a question of time when the entire structure would fall apart, if the Judges fail to understand the monster called “Judicial Misconduct / Corruption”. The Bar is the ears of the Bench and Judiciary will do well if it takes immediate action to clean up cases of Judicial Misconduct / Corruption.