The Attorney General for India, K.K.Venugopal, has declined his consent to initiate proceedings for criminal contempt against the nominated member of Rajya Sabha, Ranjan Gogoi, for the interview he gave at the India Today conclave on February 12. But that should not deter us from critically analysing Gogoi’s interview and Venugopal’s defence of it for their inconsistencies.Venugopal agreed with transparency activist Saket Gokhale, who sought his consent, that Gogoi initially made some very strong statements about the judiciary and the Supreme Court of India during the event. But he added that the statements “apparently reflect his deep frustration with the ills that undoubtedly beset the justice delivery system”. Venugopal, who claimed that he watched the entirety of Gogoi’s interview, was of the view that what he said was for the good of the institution, and would not in any manner scandalise the court or lower its authority in the eyes of the public.Venugopal’s defence of Gogoi is of a piece with the general attitude of judges towards cases involving allegations of contempt of court. If the accused was or is a member of the judiciary, the court looks at the alleged contemptuous statements with leniency. The same statements, if made by a common man with the same intention to reform the judiciary may, however, invite the wrath of the judiciary.In In Re: Vijay Kurle and Others, the Supreme Court bench of Justices Deepak Gupta and Aniruddha Bose held on April 27 last year that any citizen can comment or criticise the judgment of this court; but that citizen must have some standing or knowledge before challenging the ability, capability, knowledge, honesty, integrity and impartiality of a judge of the highest court of the land.In this case, three contemnors – practising lawyers – were alleged to have made serious charges of mala fide against Rohinton Fali Nariman, a sitting judge of the Supreme court. The bench concluded that the contemnors made false statements with the mala fide intention of harming the reputation of the judge, and raised questions with regard to his impartiality or ability. Although the bench’s decision might have been justified in view of the facts of this case, the bench’s observation that if the accused had some standing or knowledge, their challenge to the ability and impartiality of a judge of the apex court might be viewed differently makes one wonder whether the judiciary, in deciding contempt of court cases, suffers from a serious class bias.The Supreme Court in In Re: Arundhati Roy (2002) held that all citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism which, if not checked, would destroy the institution itself. To ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved, the court held that case.In P.N. Duda v Shiv Shankar, the accused was a former judge of the high court, who was minister for law, justice and company affairs in the Central government. Shiv Shankar had criticised the functioning of the Supreme Court and one of the principal criticisms of this court was that it was comprised of judges belonging to the upper echelons of society and therefore, the court was more sympathetic to industrialists and representatives of elitist culture etc. The Supreme Court in this case observed that the minister would have been better advised to avoid certain portions of the speech, and the speech did not amount to interference with the administration of justice or bringing the administration of justice into disrepute.Also read: Why the SC Order Closing the Case on Conspiracy Against Ex CJI Ranjan Gogoi Is DisappointingThe Supreme Court, in another case, defended its decision in P.N. Duda on the ground that if reasonable argument or criticism in respectful language and tempered with moderation is offered against any judicial act as contrary to law or public good, no court would treat criticism as a contempt of court. Shiv Shankar being a former judge of a high court, perhaps, deserved immunity.In the recent Prashant Bhushan case, Venugopal told the Supreme Court that nine former judges of the Supreme Court had said that there was corruption in higher judiciary and that seven of them made the remark immediately after their retirement. That the court did not use its suo motu powers to question those former judges was cited by Venugopal to justify dropping of the contempt of court case against Bhushan. By not agreeing with Venugopal, the court only confirmed its class bias. Venugopal’s consent for initiating cases against comedian Kunal Kamra and artist Rachita Taneja, while declining consent in the case of Gogoi, conveys a hidden understanding and appreciation of this class bias.There were, however, two exceptions to this so-called class bias: Justice C.S. Karnan and Justice Markandey Katju, as in both the Supreme Court proceeded to punish them, despite being former judges, for their alleged contemptuous acts. While the case of Justice Karnan provoked critical commentary against the Supreme Court for its other bias, Justice Katju’s apology was sufficient for Justice Gogoi to drop the proceedings against him.Gogoi’s statementsIt can, therefore, be safely said that the Supreme Court would have found Gogoi innocent, even if Venugopal had given his consent for initiating contempt of court proceedings against him for what he said, because it was Gogoi, the former chief justice of India, who said it.But that prospect should not deter us from examining closely what Gogoi said at the recent interview. He described the judiciary as ramshackle, while juxtaposing it with the five trillion dollar economy. The word ‘ramshackle’ means something which is badly or untidily made, and therefore, ready to collapse. Does Gogoi suggest that the Indian judiciary – the way it was conceived by the Constitution makers – was badly made, and therefore, any kind of reform is unlikely to be effective? There is nothing wrong in holding such a view, but Gogoi should articulate it clearly, rather than leave it to speculation as to what he had actually meant.Secondly, while referring to the huge backlog of cases at every level of the judiciary, Gogoi was critical of the manner of appointing judges thus: “You don’t appoint judges as you appoint officers in the government. To judge is a full-time commitment. It is a passion. Can’t we find right kind of people? Appointments are now routine. That is not the way. Why political executive is sitting (on the collegium’s recommendations)? Half the high courts are sitting with 50% of strength. Is appointment that difficult? When you appoint a judge, train him up.”Gogoi must be admired for the manner he criticised the collegium system of which he was himself part of till the retirement, albeit implicitly. That the collegium system lacks a mechanism to train the judges before or after appointment is clear enough. Judges get trained by exposing themselves with the actual work, after their appointment. The high court judges have a long tenure, and therefore, can aim to be perfect judges. Most judges being appointed to the Supreme Court, however, have limited tenures, and therefore, cannot derive enough satisfaction of having contributed to the development of law or reduction of pendency of cases at the apex court.But what did Gogoi do to get the Centre to implement the revised Memorandum of Procedure (MoP) for appointing judges, which was directed by the Supreme Court’s constitution bench in the NJAC case in 2015? He did nothing, and continued to treat the issue as an administrative matter, instead of pulling up the government for non-compliance with the court’s directives. The revised MoP, if introduced, would have created a permanent secretariat to systematically collect data about eligible candidates for judgeships, and even prepare the ground for their training.Also read: The Relevance of Ranjan Gogoi’s Assam-Centric Statements on NRC, CAAInstead, Gogoi was critical of the National Judicial Academy at Bhopal for not teaching judicial ethics or morals and how to conduct court proceedings. “System is not worth, for more reason than one,” he said. The chairperson of the NJA is the CJI himself in his ex-officio capacity. Besides, the NJA is guided by the four senior-most judges of the Supreme Court. One wonders whether Gogoi missed his opportunity to reform the NJA’s programmes and curriculum.Then Gogoi’s grievance is that the district judges dealing with arbitration cases also adjudicate normal cases; as a result they don’t apply the law correctly, being ignorant of how the Supreme Court had decided a particular case. One is tempted to infer that Gogoi could not reform the system because of the limited tenure which he had as the CJI. If so, how does he expect his successors – who too face limited tenures – to succeed where he failed? He called upon his brother judges to engage themselves on a road map (to appoint better judges). “It is not that difficult,” he told them. If so, why did success on this front elude him?Judges being cowed down by attacks while in office or after office was another issue which Gogoi raised. “Conduct yourself the way we want. Otherwise, we will attack you” – that’s how he described how today’s critics of the judges tend to resort to blackmail. “There are many (judges) who are succumbing (to this blackmail),” he suggested. But he didn’t identify the source of these attacks. Are the attacks from the executive? Or are they from non-political actors? Does his acceptance of the offer to be nominated as the Rajya Sabha member not suggest an example of such succumbing? Instead of clarifying this, he sought to convey that he would have settled for something bigger than a Rajya Sabha seat, if he wanted to bargain with the executive.Not taking a penny from Parliament as a member – as Gogoi claimed as his proof of honesty – is not a virtue. That a member has sources of income other than the salary from the House as a member which compensates its lack is a matter of concern to the general public.Gogoi made light of the criticism by the Trinamool Congress MP, Mahua Moitra, of his conduct of accepting the Rajya Sabha membership after retirement. After finding fault with her for not naming him during her speech, he avoided naming her himself, by calling her a “lady member of Parliament” – revealing his misogyny.“If you are going to court, you will be washing your dirty linen. You go to court if you are a corporate, and take chances. If you succeed, crores will come; if you don’t it doesn’t matter.”First, Gogoi confirmed that had he taken Moitra to court for defaming him, he would be washing dirty linen about the sexual harassment allegation which marred his tenure as the CJI. The recent denouement of the defamation case fought by the high-profile editor, M.J. Akbar, against journalist Priya Ramani at the trial court did not bring any glory to Akbar, and this must have taught a key lesson to Gogoi about the results of such misadventures.Second, Gogoi answered, in the course of the interview, a question on how he presided over the bench which heard the sexual harassment case against him, and gave himself a clean chit. “What did I decide?” he asked his interviewer, referring to the proceedings of that special bench which held a special hearing on April 20, 2019 (a Saturday).He implied that since that bench (comprising himself, and Justices Arun Mishra and Sanjiv Khanna) did not decide anything, he could not be blamed for himself deciding his case in his own favour. He also suggested that Moitra got her facts wrong, as it was his successor, CJI S.A. Bobde, who, as No. 2, set up the inquiry committee to probe the allegations against him. Gogoi, however, avoided mentioning that this committee too, without sharing its findings with the complainant, concurred with Gogoi that he was innocent.Also read: Sorry Mr Gogoi, We Need ‘Constitutional Distancing’, Not Court-Government BonhomieIt is true that the order uploaded on April 20, 2019 did not include his name as having presided over the bench – an omission which was adversely commented on by senior lawyers. But the bench clearly decided – after allowing Gogoi to preside over its hearing but leave before pronouncement of the order – that the allegations against him are wild and scandalous and advised the media to take off such material which, it hinted, is undesirable. The final outcome of the same case on February 18, 2021, when another bench said that a conspiracy against Gogoi cannot be ruled out is a clear decision which can be traced to the proceedings of April 20, 2019.But Gogoi has also indicated that it is the corporates who stand to benefit by going to the courts, and not ordinary litigants. Coming from the former CJI, his remark is likely to shatter whatever little confidence which people have in judiciary. The public have a right to know whether the cases he heard and decided at the apex court benefited only the corporates, as they didn’t lose anything even if they happened to lose court battles. For ordinary litigants who do approach the courts for relief against corporate giants, a victory may mean nothing, if what Gogoi said is true.On Rafale, Gogoi contradicted himself. He said that the parameters applied to building contracts can’t be applied to the action of the state in aircraft acquisition, and that is why the parameters have to be far more stringent. That is what the petitioners in the Rafale case wanted, but the bench presided over by him didn’t find any merit in their argument. Instead, he defended his sealed cover jurisprudence, without clarifying how the disclosure of the information about the cost of the armaments being procured could help our enemy.Lastly, Gogoi said Justice M.R. Shah of the Supreme Court should not have publicly stated that Prime Minister Narendra Modi is a vibrant and visionary leader, and that he should have kept his admiration of the prime minister to himself, instead of expressing it. But he added a caveat: “The statement that the PM is a great man doesn’t suggest a quid pro quo.” At a time when judges aim at post-retirement sinecures from the executive, Gogoi’s advice to Justice Shah is amusing, if one reads between the lines. Gogoi is perhaps suggesting that one need not publicly express his admiration for the leader to secure a quid pro quo. What would help the judge after his retirement is his conduct as a judge, while deciding disputes involving the leader and his party. After all, Gogoi didn’t bother to admire the prime minister publicly while in office. He still got rewarded.It is not without reason that Gogoi raised his differences with the BJP on the Citizenship (Amendment) Act and National Register of Citizens during the interview, to convince his questioner that he is not pro-BJP and therefore, must be considered as independent member of parliament. It is perhaps too early to agree with him on this.