The internet has been abuzz with news concerning Hon’ble Justice Gogoi’s recent autobiography ‘Justice for the Judge’. The buzz is understandable given the Judge’s polarizing past and the contentious issues the book deals with. There is significant writing (mostly negative) about the book already which got me wondering, how can a book be so reviled? Hence, I ordered a copy for myself and was surprised to find out that the reviews don’t do justice to the book as they only cover parts of it.
I believe, there is more to the book and some of the issues it raises should be discussed. Therefore, in this post I won’t discuss the mainstream issues covered in the book, which namely include the Ayodhya verdict, the Rafale verdict, the NRC verdict, the sexual harassment complaint against the Judge etc. In this post, I shall analyse the book in toto, starting from (a) its aim and its underlying theme of Justice Gogoi being an independent and upright Judge, (b) the problems with the Collegium which it raises, and (c) other issues pertaining to the judiciary which it also raises. At the outset, I wish to state that this post is merely a critique of the book and covers both the good and the bad.
a. Gogoi as a Self-Made Iron Man?
Presenting Justice Gogoi as a strong and upright Judge seems to be the underlying theme of the book. This narrative starts from the book’s prologue where Justice Gogoi speaks about himself in third person, narrating the story of a 15-year-old boy from Dibrugarh who made it to the highest court of the land, as its Chief Justice.
I personally find such an introduction to be slightly conceited (especially in an autobiography) and this belief is strengthened as the book proceeds. The book is replete with sentences like, ‘I chose not to shirk what I inherited from my predecessors but to bite the bullet and to lead the adjudication of one of India’s oldest-standing disputes’, ‘… what cannot be lost sight of is that without the iron will of the CJI as the leader, the culmination of the matter would not have been possible’, all of which aim to portray him as an iron man, a tough Chief Justice and a Judge who steered the Court through tough times.
Another narrative in the book is to show Justice Gogoi as a self-made man despite coming from a privileged family. His father was a senior advocate with the Guwahati High Court and later the Chief Minister of the Assam. His mother also came from a politician’s family. To his credit, he admits this privilege but in my opinion, does it poorly. He highlights incidents like taking public transport during his days as an advocate, being an adjusting Judge during his time in Guwahati etc. to drive home the point that despite being privileged, he lived within his means and made it on his own.
This narrative takes a hit when he discusses his time at the Bar. For instance, he narrates an incident that on his first day at the Bar, many senior lawyers personally congratulated him on choosing the legal profession. Further, he states that his father had requested Guwahati’s most successful lawyer J.P. Bhattacharjee to take Gogoi J., as his junior. Being a first-generation lawyer myself and having interacted with many others like me, I can confidently state that such perks don’t come around easily and Justice Gogoi was definitely at an advantage given his privilege.
However, what’s distasteful is that he underplays this privilege (rather unconvincingly) by saying that such gestures were part of the Bar’s convention and had nothing to do with his status as the Law Minister’s son.
b. Collegium: An Unavoidable Evil?
Justice Gogoi devotes significant space to the Collegium system for appointment of Judges in India and his experience being a part of it. For the uninitiated, in India decisions pertaining to appointment of Judges of the Supreme Court and High Court are taken by a body of Judges collectively called the Collegium. The Collegium consists of the five senior-most Judges of the Supreme Court/High Court and recommends names for appointment of their respective courts to the Executive, who then confirms it or sends it back for reconsideration.
The said system has often been attacked for its opaque nature, since its proceedings are conducted behind closed doors and reasons behind its decision to recommend a Judge for elevation, are not disclosed. The Collegium merely issues a notification with the names of the proposed Judge/s sans the reason behind their names. It should be noted that the Collegium system is a creation of the Supreme Court in Supreme Court Advocates on Record Association and Anr. v. Union of India, (1993) 4 SCC 441, and did not find a place in the original text of the Constitution.
Justice Gogoi in the book argues that there is merit in not disclosing detailed reasons behind decisions of the Collegium. He bats for the existing system despite recognizing that it suffers from procedural opacity. To support his claim, he cites several decisions taken by the Collegium. Citing these cases weakens his argument rather than strengthening it.
First, he cites the case of Justice Surya Kant, who was appointed to the Supreme Court over his senior at the Punjab and Haryana High Court Justice Ajay Kumar Mittal. Justice Gogoi writes that the basis for superseding Justice Mittal was an adverse remark by Collegium Member Justice Chelameshwar to the effect that ‘Mittal to his knowledge was not fit to be Chief Justice’. Later, Mittal was elevated as Chief Justice of the Meghalaya High Court during Gogoi’s tenure.
Second, he cites the case of Justice Akhil Kureshi who was recommended as the Chief Justice of the Madhya Pradesh High Court by the Collegium. However, the Executive (in effect Law Minister) expressed objection against his name based on a negative perception flowing from certain judicial orders passed by him. His name was sent back and later recommended for the Tripura High Court instead.
Third, is the case of Justice V.K. Tahilramani (Chief Justice of the Madras High Court) who was transferred to the Meghalaya High Court. Justice Gogoi writes that the Judge was transferred because some adverse information regarding her had come to light, including her irregular and infrequent sittings in Court. The Collegium believed that transferring her to a High Court with less work would solve the problem.
Justice Gogoi cites these instances to show that by withholding reasons behind their transfers, the Collegium protected their future tenures as Chief Justice of Meghalaya and Tripura. He writes, ‘if views of Justice Chelameswar were made public, it would not have allowed Mittal to become Chief Justice’ and (regarding Kureshi) ‘if this fact was made available to the public it would have done the Judge more harm.’
Justice Gogoi’s approach is problematic as it disrespects High Courts like Tripura and Meghalaya, as they may be perceived as punishment postings. It also disrespects the people of these states as they are treated unequally as compared to states like Delhi, Maharashtra, Uttar Pradesh etc. which are viewed as lucrative postings and arguably get better Judges.
Despite defending the Collegium, Justice Gogoi himself highlights instances wherein the Collegium failed to recommend good Judges for elevations. He writes about a Judge who refused to clear 15-20 names on the ground that he did not remember the said advocate/s. He writes, ‘many persons considered eligible by three Chief Justices of High Courts get excluded because a consultee judge in the Supreme Court who had worked in the High Court a decade earlier, fails to recognise the names, the next Chief Justice has to fall back on names, which are, naturally not the first choice.’
He also writes about the impasse during the tenure of Chief Justice Thakur. During three Collegium meetings called by the Chief Justice, any name proposed was opposed by Justice Khehar and Mishra, on the ground that they needed more time. At one meeting, Justice Thakur asked the Collegium members if they were interested in conducting any business and the said two Judges remained silent and the meeting was called off.
Despite citing these incidents, he ultimately argues ‘we should repose some trust in the judges. All that they do is not necessarily wrong, as is sought to be projected.’ Given Justice Gogoi’s own recollections of the Collegium and India’s judicial history, this is a poor argument. Judges have often shown us that they do falter and cannot be trusted with judicial appointments. Even here however, he does not forget to praise himself and says, ‘from my experience as a member of the collegium and as the CJI presiding over the Collegium meetings, I believe the system worked reasonably well during my tenure…’
c. Problems facing the Judiciary:
One must commend the book for raising various problems that are plaguing the Indian judiciary (particularly the Hon’ble Supreme Court) today. He raises three key problems i.e., (i) Delay in Listing of cases, (ii) Overcrowding of Courts, and (iii) Rise in Public Interest Litigation petitions (PIL). Raising these problems is a good thing but it also shows Justice Gogoi’s failure as a Chief Justice to remedy them effectively.
Justice Gogoi writes that listing of cases is delayed not just because of non-availability of Benches but also because many cases are filed with defects. He argues that defects are the principal reason for the delay. In my opinion, this ignores the practical realities of the Court wherein some matters are listed despite defects within days of filing whereas some are not listed despite being filed without defects. Case in point here is the famous bail case of journalist Arnab Goswami which was listed expeditiously despite defects. In fact, Senior Advocate Dushyant Dave wrote a letter to the Chief Justice highlighting this preferential treatment. Therefore, defects are clearly not the reason for delay in listing of cases, something else is.
Justice Gogoi further writes about overcrowding of courts by citing an instance where Solicitor General R.F. Nariman could not enter a courtroom due to overcrowding. The Hon’ble Supreme Court in the year 2018, had agreed for live streaming its proceedings, a move that would have significantly reduced the crowding in courts. Justice Gogoi during his tenure as the Chief Justice of India could have implemented the said judgment and reduced the Court’s footfall but he was unable to do so.
He further writes that PIL jurisprudence has been lost and today many PILs are filed with the legal guise of challenging matters of governance, and some are frivolous. He cites the example of PILs seeking banning of Sardar jokes, bringing back Kohinoor to India, banning wearing of red dress all over the country etc. To his credit, Justice Gogoi did seem to adopt a strict approach towards frivolous PILs when he initially assumed office but later was generous in admitting PILs despite their shoddy drafting and non-compliance with the law governing PILs.
In this post, I have tried to be fair to the author (Justice Gogoi) while reviewing his book. I have commended him for what I liked about the book and critiqued him for what I didn’t. I must applaud the Judge for remembering and thanking the people who helped him in his journey. For instance, he mentions and thanks his friend R. Balakrishnan who gave him notes during his BA examinations and his Protocol Assistant Rajbir Singh who helped him immensely during his time at the Supreme Court.
At places, I felt the book only presented a one-sided view (that’s probably justified given it’s an autobiography) but I had hoped for a more engaging discussion. This was especially true when the Judge discussed the circumstances concerning his elevation to the Gauhati High Court over his senior colleague and childhood friend Justice Amitava Roy.
Names of Justice Roy and Gogoi were recommended together for an elevation to the Gauhati High Court. In fact, Justice Roy was Justice Gogoi’s senior at the Bar and hence, was fourth in the list while Justice Gogoi was the fifth name. Interestingly, Justice Gogoi was elevated over Roy. Gogoi writes that Chief Justice S.N. Phukan took this decision because Gogoi had exposure to ‘all round work’, had a wider practice and more income than Roy. It should be noted that a contrary version is put forth by Guwahati based Senior Advocate K.N. Choudhary.
Choudhary believes that before elevation Gogoi did not have a great practice. Further, he believes that Justice Gogoi used his connections to ensure his appointment over Roy. I had hoped Justice Gogoi would either counter these allegations or provide more information regarding the circumstances surrounding his elevation.
To conclude, I had hoped for the book to deal with some contentious issues in a greater detail than it did and also omit certain details, which made it incoherent and difficult to follow. Being an advocate for free speech, I believe one should read it without blinders to understand the side of a polarizing figure like Justice Gogoi. Whether one agrees with it or not, is a choice I leave for the readers.
(Through this post, I do not wish to offend or disrespect anyone. I have the utmost respect for the Indian judiciary and its honourable Judges.)