CHIEF JUSTICE Dipak Mishra’s tumultuous tenure was followed by that of Justice Ranjan Gogoi, who had been one of the judges addressing the press conference, though he would later claim he had only done so reluctantly.
When Justice Gogoi was taking over, many of us, including Justice Nariman and I, felt it would be the best time for the court’s leadership. He was tough, but equitably tough. He did not distinguish between which lawyer was appearing before him, was always ready with his brief and could be equally firm with anyone.
We did good work together while sitting on the same bench: pushing for infrastructure creation in the High Courts, issuing notice to all state governments about vacancies and appointing amicus curiae to assist with different courts’ backlogs. He had told me even before he took over as the chief justice of India that I would be on his bench. However, his tenure was marred by a single incident that, in perception at least, set it all to naught. On Saturday, 20 April 2019, four news portals carried news of a former Supreme Court staff member’s affidavit alleging that the chief justice had made unwelcome sexual advances and that she had afterwards been transferred and dismissed, her husband suspended from the police and her family persecuted. That same day, the chief justice immediately constituted a bench – comprising himself, Justice Arun Mishra and Justice Sanjiv Khanna – in a suo motu proceeding given the cause title In Re: Matter of Great Public Importance Touching Upon the Independence of Judiciary. Justice Gogoi denied the allegations from the bench, describing them as an attempt to seriously undermine judicial independence. The order issued that day, which was signed only by the other two judges, Justice Gogoi himself not finally being party to it, asked only that the media show restraint in its coverage.
Two enquiries followed. An in-house panel of Justices S.A. Bobde, N.V. Ramana and Indira Banerjee took up the complaint, with Justice Indu Malhotra later replacing Justice Ramana. The complainant herself withdrew from the proceedings on 30 April, citing reservations about the process. The panel went on without her and, on 6 May, announced that it found no substance in the complaint. Separately, Justices Arun Mishra, Rohinton Fali Nariman and Deepak Gupta took up the advocate Utsav Singh Bains’s claim that he had been offered a crore and a half to fabricate the charge and appointed Justice A.K. Patnaik to enquire into the alleged conspiracy.
After Justice Gogoi retired, the complainant was reinstated with full back wages. The proceeding came before Justices A.S. Bopanna, V. Ramasubramanian and me on 18 February 2021. Justice Patnaik had reported that while a conspiracy could not be ruled out, the allegations could not be fully verified for want of records. Two years on, there was little prospect of recovering the electronic material.
We closed the ‘conspiracy’ angle, as it was not serving any purpose, and brought an end to a chapter that had certainly not covered our institution in glory.
My own view is, quite frankly, that people in higher positions have to forget certain slights and not join issues over everything. One cannot use a 2-km radius of artillery when the problem calls for something far smaller and more surgical. I am not sure it was wise for Justice Gogoi to have installed himself on the bench that had first heard the matter. It would have been more proper for him to step away and let the next person determine how to proceed.
His main grievance, which he relayed to me often, was that every time any episode occurred anywhere in the judiciary, this incident would crop up again. I told him he was right; that only time would be a healer, nothing else. He was in an awful slump, which I felt could do more damage than anything else in stymying his functioning as the head of the judicial machine.
I think the episode affected his freedom of authority. When one is constantly looking over one’s shoulder, it becomes very difficult to look ahead from the institutional point of view. It was an avoidable situation.
Appointments were made during his tenure, but in many ways his ability to exercise the full authority of the chief justiceship was hobbled. There was a specific appointment controversy during Justice Gogoi’s time that troubled me greatly. Justice Pradeep Nandrajog, the senior-most judge hailing from the Delhi High Court, had been recommended for elevation along with Justice Rajendra Menon, Chief Justice of the Delhi High Court. The collegium under Justice Gogoi had signed off on the name, but the recommendation was never sent to the government. Justice Gogoi withheld it, ostensibly because news had leaked to the press, as it invariably did because someone among the five members had spoken to the concerned parties. I told the chief that I knew it had not leaked from the secretariat, which meant that it could only have come from one of the judges, which I knew and obviously he would too.
There was a private history behind that episode that entangled it even further. Justice Pradeep Nandrajog had not been on the best of terms with my classmate Justice Valmiki Mehta: The two had come from the same chambers, and some disagreement on the judicial side had bred a lasting coolness between them. Justice Gogoi was connected to Justice Mehta by marriage of their children. When I took the leak up with Gogoi directly, I told him plainly that it had not come from the secretariat; these things happen because one over-enthusiastic member of a collegium of five says something to somebody, and from there it reaches the press. This could not possibly be a reason for torpedoing the recommendation itself. I told him not to do this, that there were great expectations of him and that he should not let a personal matter colour the essential work of appointments. However, the collegium changed as Justice Lokur demitted office. A new set of recommendations was made.
When Justice Sanjiv Khanna was up for elevation, on a list that no longer included Pradeep’s name, I wrote a consultative opinion expressing my dissatisfaction at the whole thing, even though Sanjiv was my immediate junior from school, college and law school. In my opinion, I did not hold back in my appreciation for Sanjiv’s merit but added the caveat about Pradeep. I had simply stated what I believed was right. This was a principle I held throughout my career: My job was to give my honest assessment.
If Pradeep had been my close friend, I might have felt differently about the propriety of speaking up, but he was not a close personal friend. He was a colleague whose working style was similar to mine, and with whom my main interaction had been successfully cutting down the backlog in the Delhi High Court. He had clearly merited elevation.
Post retirement, I have had occasion to meet Justice Gogoi a couple of times. During one such meeting, I asked him directly, ‘Did you really think what happened with Pradeep was the right decision?’ He said, ‘No, I think I made a mistake, and he would have been an asset to the Supreme Court.’ But his answer, correct if not satisfactory, was that you cannot unmake a mistake.
Sometime later, when Justice Gogoi wrote his memoir, I thought that as a good man, he might have acknowledged as much in its pages. There is no infallibility in any of us; a man may make a mistake. That he did not say so there was, to my mind, a missed opportunity. The admission would have cost nothing and would have set the record straight.
During Justice Gogoi’s tenure, I also got a taste of what happens when the judiciary is dragged into the political maelstrom.
The extracts have been published with the permission of the publishers, Juggernaut Books.