Faced with a barrage of criticism from former judges – many of whom had been his colleagues, such as Justices A.K. Patnaik, J. Chelameswar, Madan B. Lokur, Kurien Joseph and A.P. Shah – Justice Ranjan Gogoi has defended accepting a Rajya Sabha seat from the government after having gifted it several important judgments like Ayodhya, the Sabarimala review and Rafale by mounting an offensive against them and against what he calls a “lobby” of lawyers, in which he named myself and Kapil Sibal.
In an interview to the Times Now channel on March 21, he accused me of questioning the appointment of Alok Verma as Central Bureau of Investigation director and said I was inconsistent in later questioning Verma’s dismissal in a midnight coup.
Gogoi’s memory is obviously playing tricks on him. The fact is that we had gone to court to question the appointment of Rakesh Asthana as acting director, CBI, after Ranjit Sinha retired, and the non-appointment of a regular director by the selection committee comprising the prime minister, leader of opposition in the Lok Sabha and chief justice of India. It was only after the Supreme Court forced the government to appoint a regular director that Alok Verma was appointed. We never questioned his appointment but only sought copies of the minutes of the meeting in which he was selected.
Thereafter, when Alok Verma was removed, we challenged the removal. Even though Gogoi, as CJI, was himself in the high powered committee which was to approve Verma’s removal, he heard the matter on the judicial side, and finally reinstated Verma on the eve of his retirement but referred the matter back to the high powered committee (in which he deputed Justice Sikri, who was not the next senior most after him, to represent him), to approve his removal. The government promptly moved the committee the same day of the judgment and the committee duly then approved Verma’s ouster. Gogoi now says that Alok Verma was a good officer yet he did nothing to stop the illegal, midnight removal of this good officer!
Regarding his colleagues Justices Madan Lokur and Kurian Joseph, Gogoi says they have “failed ambitions”, though they were his good friends. It is indeed remarkable that he so casually accuses his colleagues of failed ambitions even though they worked with him for more than six years in the Supreme Court and participated in the famous press conference of January 2018 with him.
Once these were appointed to the Supreme Court after Gogoi, obviously they knew that Gogoi would become CJI and they would not. Where was the question of “failed ambitions”, unless Gogoi is hinting that they were also hankering for a Rajya Sabha seat and the government gifted one to him alone? These allegations against two of the most upright and conscientious judges is petulant, arrogant and absurd.
Defaming Justice A.P. Shah
Gogoi then went on to make serious charges by innuendo against Justice A.P. Shah, former chief justice of the Madras and Delhi high courts, and one of the most respected retired judges.
He says there were complaints against Shah, regarding “an actress” and regarding two property cases. He said these were on record and exhorted his interviewer to obtain details under RTI (from the Supreme Court obviously). He did not disclose that on August 5, 2019, a Supreme Court reporter, Dhananjay Mahapatra, had, in an article, mentioned the very same allegations, stating that they were contained in a complaint by some Madras advocates to the then CJI, which then stopped Justice Shah’s elevation to the Supreme Court.
Mahapatra wrote this while referring to a recent public lecture Justice Shah had just delivered on the subject, ‘Judging the Judges: Need for transparency and accountability’, in which Justice Shah had extensively referred to Gogoi’s case of sexual harassment.
While Mahapatra did not detail the substance of the charges, Justice Shah in a stinging riposte stated,
“He relies upon a letter that he claims was allegedly sent in 2008 by some lawyers to the then CJI which supposedly cast aspersion on my character. He also adds that only a limited number of persons knew of this letter and the then CJI took no action. On my part, this is the first time I have heard of such a letter and in any event I deny all the allegations made by your reporter with all the contempt that it deserves. One would have thought that Mr. Mahapatra would have stuck to basic journalistic principles of verifying sources and checking facts and asking for an opinion from the other side before filing a report. None of these were done.”
It is obvious that the 2008 complaint against Justice Shah was given to Mahapatra by Gogoi . It suffices to say that the complaint was never acted upon by any chief justice, nor was Justice Shah sent a copy of that complaint at any stage, for his response. Yet Gogoi tells his interviewer that she can obtain this complaint under RTI, at a time when the Supreme Court refuses to share any information regarding assets of judges, pending judgments, minutes of collegium meetings on appointments, etc. under RTI!
Since Gogoi referred to Justice Shah’s tenure in the Madras high court, I have made enquiries from Justice Shah and other advocates of the high court to ascertain what Gogoi could have been referring to when he spoke of charges related to an actress and two property cases.
The only case of any actress that Justice Shah dealt with was one involving multiple complaints made against the Kushboo, for some remarks she had made about pre-marital sex. Justice Shah had stayed those multiple complaints, which were thereafter quashed by the Supreme Court.
Of the property cases, one appears to be a reference to the sale of a hospital and its land by the Kanchi Kamakoti Peetam, a charitable trust. The trust originally wanted to sell it to M/s Chettinad Hospitals at an offer price of Rs 105 crore, which was declined by a single judge of the Madras high court. On appeal, a division bench headed by Justice Shah ordered it to be put on sale by way of a public auction with advertisements in prominent newspapers. The two highest bidders were M/s Global Hospital, a reputed company running a chain of hospitals, which made a bid of Rs 257 crore, and M/s Shriram Properties, a reputed real estate company, which made a bid of Rs 265 crore (later increased to Rs 280 crore).
Since the hospital and land belonged to a charitable trust that intended to run the hospital in a suburban area to meet the needs of the villages close by, the sale was intended to be to an entity that satisfied this requirement to the greatest extent.
Justice Shah’s bench, while granting the sale to M/s Global Hospitals, imposed a condition that the hospital would have to be run for charitable purposes and not be used for real estate and that at least 50 beds would have to be reserved for poor patients without payment. It must be noted that the real estate company did not agree to these conditions. Later, they came with a plea that they would enter into some partnership with Manipal Hospital to run it as a hospital but since they contemplated making improvements, they would be unable to run the existing hospital. These conditions were not accepted by Justice Shah’s bench, also because there was no credible evidence to suggest that Manipal Hospital would actually run the hospital, and therefore the sale was allowed to M/s. Global Hospitals.
I have read the orders passed in this case, which make it clear that the trust agreed to this sale. No appeal was filed against this order and it became final. The proceedings of this case were widely reported in the media. Yet this case, according to Gogoi, appears to be an instance of Justice Shah clandestinely allowing the sale of property for a song!
It is not clear what the other property case which Gogoi mentions was, but certainly, none of these charges have ever been put to Justice Shah. Justice Gogoi’s offensive remarks against Justice Shah are not just baseless and defamatory, but scurrilous and by innuendo. As a former judge, he ought to know that even if he were speaking on the basis of some allegations made in a letter by some advocates to the then CJI (which were never put to Justice Shah nor inquired into by anybody), any public accusation made on the basis of such a letter is not only reckless but defamatory. It amounts to civil as well as criminal defamation.
Compromising the independence of the judiciary
Gogoi has not merely been guilty of accepting a gift of a Rajya Sabha seat by the government after retirement, but has been guilty, as Justice Lokur has detailed in a recent article in The Wire, of three egregious acts which have compromised the independence of the judiciary:
1. Evolving a sealed cover jurisprudence by which he repeatedly sought, accepted and used information conveyed to him by the government, in unsigned notes in sealed covers (which were not even shared with the opposite party) and many of which turned out to be factually incorrect (as was evidenced in the Rafale case). This sealed cover jurisprudence violates every principle of law and natural justice and allows the court to decide cases behind the back of one of the parties, without even sharing any information used as the basis of the judgement.
2. Prioritising and hearing/not hearing cases on the wishes of the government.
3. Appointment and transfer of judges on the wishes of the government.
It is true that I applauded Gogoi when he participated in the 2018 press conference to highlight the then CJI, Dipak Misra’s abuse of the master of roster power to fix benches. I also applauded Gogoi’s Goenka lecture where he said the country needs not just noisy journalists and independent judges but also independent journalists and noisy judges. But after becoming CJI – which is also around the time when a court staffer says she was sexually harassed by him – he sat in the governments lap and not only abused his power as master of roster in the same manner as his predecessor but also did the things mentioned above to destroy the independence of the judiciary.
In the end, he turned out to be what Arghya Sengupta called him in a recent article – ‘a virus in robes’. History will remember Gogoi not as judge or parliamentarian but as the Chief Justice of India who diminished the reputation of the Hon’ble Supreme Court by turning it into an executive court.
Prashant Bhushan is an advocate in the Supreme Court