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'Under Justice Gogoi's tenure, the Supreme Court has gone from an institution that was at least formally committed to the protection of individual rights as its primary task to an institution that speaks the language of the executive, and has become indistinguishable from the executive,' warns Gautam Bhatia.
Ranjan Gogoi is no longer the Chief Justice of India.
There is much to write about.
But this post will follow precedent (unlike some of the major judgments delivered during the ex-Chief Justice's tenure) and focus on the law.
I will not, therefore, discuss the sexual harassment allegations of April/May 2019, although they constitute an important part of the ex-Chief Justice's legacy.
I will not discuss the opacity of the Collegium or what was done to Justice Akil Kureshi, where a judge seemingly not considered 'fit' to be Chief Justice of the Madhya Pradesh high court was re-assigned to the Tripura high court.
I will not discuss the prioritisation of cases -- how, ostensibly, a 'land dispute' was somehow heard by a Constitution Bench of five judges and fast-tracked, while civil rights claims connected to the lock-down in Kashmir went unheard because a Court of 33 judges -- according to the ex-Chief Justice -- 'had no time'.
And I will not discuss the problematic manner in which the ex-Chief Justice, while still the Chief Justice, defended his NRC orders at a public event, in the interests of 'development'.
Here, I will consider some of the important judgments and orders delivered by the ex-Chief Justice, during his tenure.
My assessment will be simple: ex-Chief Justice Gogoi oversaw a drift from a Rights Court to an Executive Court.
That is, under his tenure, the Supreme Court has gone from an institution that -- for all its patchy history -- was at least formally committed to the protection of individual rights as its primary task, to an institution that speaks the language of the executive, and has become indistinguishable from the executive.
The NRC Case
The starting point of any discussion about the ex-Chief Justice has to be the urgent -- almost messianic -- manner in which he drove the NRC process (even from before the time he became Chief Justice).
Recall that the National Register of Citizens is a state-wide administrative process in Assam, aimed at creating a list of Indian citizens.
The creation of the National Register of Citizens flows from -- and is linked to -- the Assam Accord, and subsequent amendments to the Citizenship Act.
As indicated above, the NRC was always meant to be an administrative process -- implemented by the government and executed by the bureaucracy.
In 2014, however, acting under expansive PIL powers, the ex-Chief Justice -- sitting with Nariman J -- effectively took over the entire process.
Formally, it was Supreme Court 'oversight' over the preparation of the NRC; effectively -- as soon became evident -- there was little difference between 'oversight' and 'control'.
Why was this a problem? The NRC process wasn't just any ordinary administrative process.
It affected citizenship -- the underlying basis of all other rights, the right to have rights.
While the NRC itself would not deprive an individual of citizenship, exclusion from that list would severely prejudice people's cases before the Foreigners Tribunals, which they would subsequently be hauled up before.
Now with consequences as serious as this, one would expect the full panoply of Constitutional safeguards to apply, with heightened rigour.
And under our Constitutional scheme, one of the most crucial safeguards is the separation of powers and judicial review.
The executive implements policy, and if -- in the process -- it violates individual rights, the courts exist to test executive action on the touchstone of the Constitution.
The Supreme Court's takeover of the NRC process effectively amounted to taking a knife and slashing right through this Constitutional fabric.
In consultation with the state coordinator, it was the Court that was determining how the process was to be conducted, what the deadlines were, what documents were admissible, and so on.
And because the Court had taken over the Executive's task, there was no place where aggrieved people could go, if they felt that their rights were being violated; after all, whom do you appeal to from an order of the Court, apart from the Court itself?
This is not an abstract, theoretical concern.
To take just one example: The use of the 'family tree' method to determine citizenship was found to disproportionately disadvantage rural women, who had greater difficulty in accessing -- and producing -- the documents that it required.
In an ordinary situation -- that is, if this had been pure executive action -- this could have been challenged before the courts on grounds of Articles 14 and 15, and struck down.
But because the modalities of the NRC themselves arose from (often closed-door) consultations between the Supreme Court and the NRC coordinator, that entire set of remedies was blocked off.
Examples of this kind abound; the situation, in effect, was like the poem from Alice in Wonderland: 'I'll be judge, I'll be jury'/said cunning old Fury:/'I'll try the whole cause,/and sentence you to death.'
'Death' is not a euphemism here.
People died because of the NRC.
People died when the Court insisted on unachievable deadlines for publishing draft NRCs (to the extent that even the State -- the actual Executive -- asked for more time, and was denied).
People died at the time of the publication of the final list, another accelerated process in which the government's requests for an extension were shot down.
Things came to a stage where Genocide Watch issued a warning around the time of the final List -- a rare time in history where judicial actions in a functioning democracy have led to a genocide warning.
In another world, this would be a moment where a Constitutional Court would be asked to step in and protect rights; but a world where the Court had become the perpetrator was a world long turned upside-down.
Sealed Covers
Right from the beginning, the ex-Chief Justice's tenure was marked by secrecy, opacity, and the ubiquitous use of 'sealed covers'.
The NRC case was marked by sealed covers.
The Rafale dispute was marked by sealed covers.
The Alok Verma litigation was marked by sealed covers.
Sealed covers popped up in the one hearing that happened on the issue of electoral bonds, and they popped up -- bizarrely -- in the litigation around the prime minister's biopic before the election.
Sealed covers are the absolute antithesis of open justice, one of the fundamental principles underlying the judicial system.
The reason for this is simple: Courts have to give reasons for their judgments.
Citizens are entitled to assess the strength of these reasons, as part of the framework of democratic accountability over courts.
If, however, the evidence on the basis of which judgments are delivered is kept hidden, then any kind of scrutiny is nothing more than whistling in the dark.
If I do not know why the Court has come to the conclusion it has, I simply cannot make up my own mind about the merits of what it has done.
In such a situation, the Courts become little more than petty autocrats: their judgments are upheld only by virtue of their institutional power, and not on the strength of their reasoning.
That is not how democracy works.
The ex-Chief Justice's penchant for sealed covers suggests another way in which the Supreme Court has transitioned to the Executive Court.
Secrecy is the hallmark of the executive: We all acknowledge that there are certain kinds of executive action that cannot be disclosed, as that would defeat the entire purpose: War plans, for example, or complex trade negotiations.
The crucial distinction, however, is that whereas executive legitimacy for these actions comes from popular elections, judicial legitimacy comes from open and public reason-giving.
Apart from certain exceptional situations, therefore, the Court simply cannot justify withholding information in sealed covers -- and certainly not in public law cases involving fundamental rights -- as that defeats the very purpose of having an independent judiciary in a democratic system.
If the Court feels that certain information is sensitive because it pertains to national security, then the answer is for it to decline to hear the case at all (insofar as it pertains to that information), on the basis that it is not institutionally legitimate to intervene.
But the Court cannot have it both ways (as it did in Rafale).
And it is important to note that what the Supreme Court does has ripple effects throughout the entire legal system.
On more than one occasion in the last few months, for example, the Delhi high court has upheld bans on organisations on the basis of evidence in sealed covers, which even the organisation's lawyers were not allowed to see.
Contempt for the Evidence Act
If 'sealed covers' represented one significant departure from the judicial process and towards executive process, the ex-Chief Justice's bizarre approach to evidence in the Rafale case represented another.
During the hearing of the PIL petitions challenging the Rafale deal, the ex-Chief Justice 'summoned' air force officials to Court to 'interact' with them.
It was then reported that the bench had an 'oral' interaction with the air force officials, questioning them and hearing their answers.
But this doesn't just take a knife to the Evidence Act, it takes a lighter and sets fire to it.
One of the cornerstones of our legal system is the adversarial process: Truth emerges out of a contest between rival views and competing evidence, and the foundation of that contest lies in procedures such as cross-examination.
Ordinarily, it is only after the other side has had a chance to put testimony to the test, through cross-examination, that it can be given the status of 'evidence', and can be relied upon by the courts.
And the procedure through which this happens is set out in detail in the Evidence Act.
Once again, therefore, the ex-Chief Justice acted as if the obligations that apply to legal proceedings -- to clearly follow the law, and to provide legal explanations if one is departing from ordinary process -- simply didn't exist for him.
Habeas Corpus
After the events of the 5th of August in the state of Jammu and Kashmir, a clutch of petitions was filed in the Supreme Court.
One set of petitions involved claims to habeas corpus: Relatives and friends of individuals in Kashmir claimed that they had been unlawfully detained, and requested the Court to intervene.
Habeas corpus is a simple thing.
No really, it is.
It literally means 'produce the body'.
All the Court has to do is to ask the government to bring the detained person, and legally justify the detention.
And habeas corpus -- as just about everyone agrees -- is one of the most foundational rights that individuals have against arbitrary State power.
What did the ex-Chief Justice do when these habeas corpus petitions came before him? Let us take the case of J&K MLA Yusuf Tarigami.
His party chief, Sitaram Yechury, filed a habeas corpus
After hearing the petition, the ex-Chief Justice 'allowed' Yechury to 'travel' to J&K to 'meet' Tarigami, and then 'report back' to the Court -- on the condition that he could only travel for this purpose, and could not engage in any 'political activities' while there.
Where does one even begin with the extraordinary perversity of all of this? Article 19(1)(d) guarantees to all citizens the freedom of movement within the territory of India.
J&K is a part of India (is it not?).
Yechury is an Indian citizen (is he not?).
There was no Emergency declared in J&K, so Article 19(1)(d) had not been suspended (in fact, the government to this day insists that everything is 'normal').
If at all Yechury's movements could be restricted, it could only be on the basis of a 'law' that met the test of reasonableness under Article 19(4).
So where on earth did the Supreme Court get the idea that it had any power or authority to 'allow' Yechury to travel to J&K, and place 'conditions' on what he could or could not do when he was there?
Where in the Constitution were these 'conditions' sourced from?
Was the ex-Chief Justice the head of the Supreme Court or the head of the Supreme Internal Visa Issuing Authority of India?
And what happened to the right to habeas corpus?
Needless to say, the ex-Chief Justice refused to provide any reasons for any of this.
No reasons for what was done to habeas corpus, no reason for the extraordinary order that made fundamental rights subservient to the whims and fancies of the Court without even an effort to locate them in the Constitution, no reason for anything.
This was a Court -- and a Chief Justice -- that had liberated itself from that annoying little thing called the Constitution.
Aut Caesar, aut nihil.
This leads to two conclusions.
The first concerns those who study, write, and speak about the Supreme Court.
For many years, there has been an established model to study constitutional courts in democratic republics (especially courts vested with the power of judicial review): as counter-majoritarian institutions (that may sometimes succeed but often fail to check majoritarian impulses), as (imperfect but important) protectors of rights, and as institutions that, at the end of the day, are built on a process of open and public reasoning and deliberations.
Under the ex-Chief Justice, though, I would suggest that the Court has departed so far from these fundamental principles that it is unrecognisable as a 'Court' under the classical model.
To continue to act as if it was, then, would be to make a category mistake.
And this is why I have used the term 'Executive Court': The trappings remain, but the substance is radically different.
The second, of course, concerns the Court itself.
We stand at a crossroads, and there is a clear choice that faces the Court.
It may keep walking down the road it has chosen in recent times (and there is a continuity between the tenure of the last-but-one Chief Justice and that of the ex-Chief Justice, but that is a discussion for another day).
It may carry on with the disastrous management of the NRC, continue with sealed covers, keep acting as if habeas corpus is a weird Latin term with no relevance to India in 2019, keep evading crucial Constitutional cases where status quo benefits the government, and double down on Article 142.
It may keep doing that, and soon there will be little left to call a 'Court' in a true sense.
Gautam Bhatia is a Delhi-based lawyer. Edited excerpts reproduced with the writer's permission.
You can read the full article here.
