Summer may have announced its arrival with the sun scorching over the dome-shaped institution of justice but in reality, the Supreme Court is witnessing one of its cloudiest seasons in history. Owing to certain events over the last year or so, it has been undergoing massive turmoil and is under question. As an institution that is supposed to be the country’s conscience keeper, it finds itself on shaky ground as it faces public embarrassment over several allegations of wrongdoing, irregularity, mismanagement, and lack of public accountability.
Not only has the institution’s integrity as a whole been questioned over handling of certain high profile and sensitive cases but this also extends to its highest officials. To have two consecutive chief justices of the highest judicial forum in the country being accused of misconduct while holding rank speaks volumes of just how deep the judicial crisis has entrenched itself.
A glimpse of the internal struggles of the institution first came light in January last year as its four most senior judges at that time, including the incumbent Chief Justice Ranjan Gogoi called a press conference alleging impropriety and raising questions on the leadership of the then Chief Justice Dipak Misra over irregularities in distributing cases between different judges and setting up benches for hearing cases. One would think that the institution would make reparations after Misra’s retirement last year but instances attacking its integrity continued to pile in the year that followed.
Between December 2018 and April 2019, shocking controversies concerning the Supreme Court have surfaced. There have been allegations against the institution in the past but this time around they were grave enough to include allegations of sexual harassment against the current chief justice and violation of judicial process in dealing with different facets of the issue, among others. While few allegations have been triumphed, at stake lies the reputation of the country’s highest judicial institution and its officials.
We take a look at recent instances that have hurt the image of the institution that finds itself in the eye of the storm.
An unprecedented controversy arose at the apex court when a complaint of sexual harassment allegations against the CJI Ranjan Gogoi by a former employee came into light last month. The complaint centered on alleged sexual harassment by Gogoi on two separate instances in October 2018 also highlighted instances of how the complainant and her family members were harassed after she refuses unwarranted sexual advances allegedly made by Gogoi. These included her getting transferred around several departments in the Supreme Court, followed by her dismissal from service in December 2018. In March, she was booked under a false bribery case, she has claimed. In unconnected incidents, her husband and brother in law were also dismissed from their service of the Delhi police. This left the complainant anguished and reduced her chances of employability. In an affidavit submitted by the woman complainant to 22 judges of the apex court on 19 April, she described in detail the CJI’s advances towards her and the victimization that followed.
A day later, the sitting CJI Gogoi called a suo moto special hearing in which he denied all charged of sexual misconduct and shifted focus on how judicial independence was under attack. He initially constituted a three-judge bench thatincluded him and Justices Sanjiv Khanna, Arun Mishra but the order passed by this bench did not include his name. Gogoi’s handpicking of judges to hear the case was something that he had accused his predecessor Justice Dipak Misra of doing.
With this, the Supreme Court put itself in an embarrassing position by not following due process of hearing the case as under the Supreme Court Rules, 2013 and following principles of natural justice. It violated the sanctity of the basic principle that “nobody can be a judge in their own cause” and adopted a process of incompetence; one that was hurried and in violation of the established due process. As a result, it opened itself up to questions such as- Is the chief justice of India above the law? Why did the Supreme Court not follow due process when it came to one of their own?
As the case proceeded, a new bench was constituted and the case was forwarded to in-house inquiry panel headed by Justice S.A. Bode and Justices Indu Malhotra, Indira Banerjee. This is problematic since there is no specific process in cases of sexual harassment allegations against the CJI and if anything, the constituted panel should not comprise of all in-house members as it points towards a conflict of interest for a complaint against one judge to be heard by a set of other judges. Why did the Supreme Court not follow the Vishakha guidelines on sexual harassment properly when it came to its own cause? Why was there no external member such as a retired judge on the panel? Did the Supreme Court bend rules for its own cause? How could a case against the CJI be decided by judge’s junior to him? These are a few questions that deserve answers as its credibility stands diminished due to its own actions.
Another incident that dented the institution’s credibility was the withdrawal of the complainant from the in-house panel proceedings because of the arbitrary manner in which she was treated on one such hearing. She was not given a copy of the statement, refused her right to get a lawyer and the proceedings were being conducted in an opaque manner (without any audio or video recording).
The panel’s decision that exonerated the CJI in a matter of few weeks based on a procedure that vitiated due process further plummets the institution’s reputation and was met by backlash and protests all over the country. The investigating panel has also refused transparency on the issue as it refused to share the basis for its decision.
The sexual harassment complaint against the CJI assumed a new dimension when an advocate named Utsav Bain approached the apex court claiming that the allegations were part of a larger conspiracy by fixers and plotters to falsely implicate the CJI. Bains initially shared his story of how he was offered money to frame the chief justice through a Facebook post after which he filed an affidavit in court and stated that one of the country’s biggest corporates, politicians and disgruntled employees were the masterminds behind it. He was asked to file an additional affidavit and has submitted evidence to prove his claims in a sealed cover before the apex court.
The claims made by Bains may be highly sensational but the Supreme Court’s reliance on furnishing of documents in a sealed cover further cast doubts on the transparency of the process adopted by it. The Supreme Court earlier drew flak for sealed cover documents it had asked to be furnished in the Rafale case and the institution is not doing much to change the public’s perception of it being opaque as it once again decided to stay masked behind sealed covers. At this juncture, every incident that tampers with the credibility of the institution is a test for the institution which must be viewed as an opportunity to show the world that free and unfair investigation can form the backbone in such cases.
A special bench comprising of Justices R.F. Nariman, Arun Mishra and Deepak Gupta have been hearing this case of the possibility of a mastermind being responsible for the framing of CJI Gogoi in the sexual harassment case. The bench has promised to get to the bottom of the issue and said that the rich and powerful cannot try to control the institution. This probe is independent of the in-house inquiry into sexual harassment allegations against CJI Gogoi.
With the country’s highest courts’ credibility hurt once again, the case is moving at a fast pace and former retired judge A.K. Patnaik has been appointed to assist the CBI, Intelligence Bureau and Delhi Police in the case. Justice Patnaik who is overlooking the probe in bench fixing charges has said that he will wait for the in-house inquiry to be completed before he begins his inquiry as he doesn’t want one to influence the other.
Although the Supreme Court on 14 December gave a clean chit to the highly controversial Rafale deal relating to the purchase of 36 aircrafts worth almost $7.8 billion that was finalized by the BJP led- Modi government, the verdict itself was highly questionable. The verdict exonerating the Modi government was passed after taking into consideration three important factors of the process of decision making, price of the deal and choice of Anil Ambani’s company as one of the offset partners of Dassault Aviation. In its verdict, the court said that it did not find a reason to doubt the defence deal and accordingly found no reason to intervene or order an investigation into allegations of irregularities under different aspects of the deal.
On the question of whether the process was followed or not, the court held that it was satisfied that “broadly” the processes had been followed. This conveyed that the court was not inclined to go into minute parameters of the deal process and satisfied itself on broad parameters. When it came to pricing, which is perhaps the most important aspect of the deal, the court clarified that it would stay clear off that but had asked the Centre to share pricing details on account of transparency. The two are counterproductive since transparency cannot be sought to be achieved by then details being furnished in a sealed cover. By refusing to get into the pricing issue, the apex court virtually threw open the battle in favor of the BJP government which was able to use the issue for its vote bank in the general elections.
Coming to the issue of choice of offset partner, the court said that it found “no evidence of wrongdoing” in the government’s decision-making process or in the choice of Reliance Infrastructure Ltd as the Indian partner. It was reinforced that the court saw no reason to get into what was a commercial decision taken by Dassault Aviation. By taking this stand, the court passed what could be seen as a broad judgment in favor of the ruling government and displayed the limit of its jurisdiction in deciding such issues.
Another aspect that came into light was the court’s excessive reliance on the arguments and submissions of the central government. It wholly relied on the Centre’s recorded submission under paragraph 25 of the judgment that stated that pricing details were shared with the CAG and that the report was examined by the PAC. Only a redacted portion of the portion was placed before Parliament. This had come under question as at that time there was no CAG report on this. The Centre followed this up by seeking a correction in the verdict to the extent that this was an issue of misrepresentation and that use of the term “is” was to convey the procedure followed in the normal course in regard to the report of the CAG. It added that the use of “is” was in reference to the procedure that would be followed as and when the CAG report was tabled and did not imply that the report had already been prepared.
While the petitioners including former ministers Yashwant Sinha and Arun Shourie and lawyer Prashant Bhushan subsequently moved the court seeking review into the clean chit verdict which is being actively pursued, the verdict exposed clinks and raised questions about the decision-making process adopted by the Supreme Court.
From the verdict, it was clear that the Supreme Court was under the impression that the CAG report had been shared with the PAC or the Parliament and it was so because of misplaced faith on the Centre’s submissions. Shouldn’t the apex court have double checked the status of the CAG report before drawing its conclusion? The questions against the Supreme Court’s decision-making extend to the casual manner in which it treated the aspect of redacting a portion of the CAG report since under established procedure it is extremely rare to redact a portion of the report once it is submitted to the PAC. How is it that the Supreme Court ignored this important procedural aspect regarding the CAG report? Shouldn’t there be a recall of a verdict that was ipso facto based on wrong assumptions and findings?
All in all, the verdict was such that it raised more questions than it answered. What was interesting about it was the fact that it was able to reach such a firm conclusion about a politically sensitive defence procurement deal by relying on little information, most of which comprised of the Centre’s oral and written submissions. With no attempts made by the Supreme Court, either through recall or correction of the disingenuous verdict, it has exposed its weak-willed nature and shown that the mighty and powerful may be fallible.
The reputation of the Supreme Court is under attacked from all quarters. Allegations of wrongdoings have gone beyond the judicial to its administrative realm. The most prominent wheel of the institution’s administrative side, the registry is responsible for filing and listing of cases. Owing to a large number of cases filed and since it functions almost independently, the registry is more powerful than one would have envisaged and had recently come under criticism for its ways. Instances of high-profile cases being listed in a timely manner as opposed to private cases being pushed back are not uncommon as the registry’s actions are often left unchecked.
In one such instance last month, chief how a high-profile matter worth hundreds of crores that concerned the DND toll was listed on a particular date. A visibly angry Gogoi asked the registry to file a report explaining how the matter came up for a listing on a particular day, in contravention of its order.
Gogoi’s court was also left surprised over the early listing of the petition of senior Congress leader Ahmed Patel pertaining to his election in the Rajya Sabha in 2017. According to the court order, it was supposed to come up for hearing on a nonmiscellaneous day (Tuesday to Thursday) but ended up getting listed for hearing on a miscellaneous day (Monday and Friday) instead of in contravention of the court order.
Yet again, the CJI’s court staff found itself under the scanner when it was discovered that dates of hearing for two politically sensitive cases, one regarding Rafale and a contempt petition against Rahul Gandhi had been suspiciously changed.
A rather shocking revelation was the discovery of an order in a case concerning the Reliance Communications – Ericsson deal having been tampered with. The tampering related to the exemption from personal appearance of Anil Ambani on the next date of hearing, which appeared to be favorable to Reliance Communications and was contrary to the order the court had passed while hearing the case. During the hearing, the court had specifically sought Ambani’s appearance and owing to mischief by two court registrars, the order when it was uploaded online read to the effect of his exemption from personal appearance.
The order uploaded on the Supreme Court website on January 7 said the “personal appearance of the alleged contemnor(s) is dispensed with”. This connoted that Ambani’s personal appearance was not required despite Justice Nariman asking for his appearance on account of the contempt notice against him. After this was brought to the attention of the Supreme Court, an inquiry was initiated against the two court employees following which they were sacked from duty. This is one instance where the apex court under the leadership of CJI Gogoi was able to reconstruct its weakening reputation by following the due procedure of initiating an inquiry and taking action based on its result.
Justice Dipak Misra through his tenure of being the chief justice of India came to be known as the king of controversy as speculations of misconduct and wrongdoings seemed to be chasing him outside of the courtroom. However, it was on the fateful day of 11 January 2018 that the internal turmoil of the judiciary was publicly exposed for the first time through a press conference organized by the then four senior-most judges of the apex court including the incumbent chief justice Ranjan Gogoi.
The unprecedented press conference voiced allegations of wrongdoings against Misra including abuse of his powers as a master of the roster by arbitrarily handpicking and fixing benches and judges to hear cases of public importance. The senior most judges claimed that they were being kept out from being assigned such cases (including the Ayodhya land case, Judge Loya murder case) as Misra employed favoritism towards other junior judges. Despite attempts to reach out to Misra on several occasions by the senior judges, he had not paid heed to them which eventually forced them to approach the media.
This day of this press conference resulted in the loss of years of credibility and integrity that the institution had harboured through the years. In a few hours, public confidence in the institution of justice plummeted. The Supreme Court had managed to lose its reputation as it was found faltering on both judicial and administrative grounds and would require working towards rebuilding its integrity.
If public embarrassment wasn’t enough, the judiciary was found to be under political clout when Misra was faced with an impeachment notice for alleged misbehavior and misuse of authority during his tenure. Allegations against Misra included his involvement in a conspiracy to pay bribes in relation to a medical admission scam, antedating an administrative order and alleged abuse of administrative power in assigning cases. The motion was ultimately rejected by the Rajya Sabha but it went a long way in damaging the integral structure of the institution and its office bearers.
In the early months following Justice Ranjan Gogoi took over as the Chief Justice, misconduct in the decisions taken by the new collegium started to surface. The collegium row was under the spotlight particularly during the months of December and January and related to the appointment of Justices Dinesh Maheshwari and Sanjiv Khanna as judges to the Supreme Court. Their appointment was cleared by the Centre within 6 days from having received the collegiums’ recommendations.
The issue arose due to a change in the decision of the collegium regarding the appointment of judges after the retirement of Justice Madan Lokur in the end of December. Before demitting office, the collegium had recommended the names of Justices Pradeep Nandrajog and Rajendra Menon for elevation to the Supreme Court. Surprisingly, after his retirement, the new collegium comprising the Chief Justice Ranjan Gogoi and Justices A.K. Sikri, S.A. Bobde, N.V. Ramana, Arun Mishra changed this decision and recommended to elevate Justices Sanjiv Khanna and Dinesh Maheshwari instead.
The decision to elevate Justice Sanjiv Khanna was criticized and opposed by the legal fraternity including the Bar Council of India as his elevation would result in the superseding of as many as 32 judges in various high courts. Sitting Judge Justice Sanjay Kaul also wrote to members of the collegium opposing Khanna’s elevation and said that it would give a wrong signal to elevate Khanna while ignoring the seniority of Justice Nandrajog. It is believed that the main reason for his elevation was to pay respect to the legacy of ideas and judicial philosophy left behind by his uncle Justice H.R. Khanna who was the sole dissenting judge in the emergency era case and said that fundamental rights could not be suspended at that time.
The decision to appoint judges while superseding others in the list of seniority was not well received by Justice Lokur who said that he was disappointed over not bringing into the public domain the decision of the earlier collegium that was atthe center of the controversy. The Supreme Court had explained the purported change in the collegium decision by citing additional documents that were found after Justice Lokur’s retirement. Before this instance, the elevation of Former Chief Justice of the Uttarakhand high Court Justice K.M. Joseph had exposed the conflict between the judiciary and the central government as it sat on his elevation for months before clearing it. Once he was elevated, he was made junior to two other judges who were elevated alongside him.
The collegium system of appointments through the years has received criticism for being too opaque. It comes across as an inside job which limits transparency in the various stages of deliberations and decision making. While this system is one that is adapted to protect the independence of the judiciary, cases where collegium decisions are suddenly changed or seniority is superseded expose the shortcomings of this method as everything happens behind closed doors.
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