India's Undeclared Emergency: Constitutionalism and the Politics of Resistance by Arvind Narrain

Author:Arvind Narrain [Narrain, Arvind]
Language: eng
Format: epub
Published: 2022-01-10T11:00:00+00:00

Easy Complicity Between the Executive and the Judiciary

The closeness between the executive and the judiciary through the chief justiceship of Misra, Gogoi and Bobde during 2017–21 is perhaps best symbolised by Gogoi taking oath as a nominated member of the Rajya Sabha four months after retiring from the Supreme Court. Gogoi said that he accepted the nomination because of his ‘strong conviction that the legislative and the judiciary must at some point of time work together for nation-building’. He asserted that his ‘presence in Parliament will be an opportunity to project the views of the judiciary before the legislature and vice versa’.253

The only other precedent for this was the election of former chief justice of India Ranganath Mishra to the Rajya Sabha on a Congress ticket in 1998, seven years after his retirement.254 However, compared to the impropriety of Ranganath Mishra, Gogoi’s acceptance of a nomination to the Rajya Sabha a mere four months after retirement raises more fundamental questions about the independence of his judgements pertaining to ‘important constitutional lodestars: Habeas corpus, non-discriminatory citizenship, the evidence act, federalism, free speech’, as Pratap Bhanu Mehta points out in an article for the Indian Express. ‘The very fact that a judge accepts such an appointment’, writes Mehta, ‘could cast doubt on his judgements. It would signal that the judiciary is not independent, but lives for crumbs thrown by the executive’.255 As Justice Shah told NDTV, ‘… the message it sends to the judiciary as a whole is that if you give judgments that are favourable to the executive, you will be rewarded. If you don’t do so, you will be treated adversely or you might be transferred or not considered for elevation.’ He called it a ‘death knell for the separation of powers and the independence of the judiciary’.256

In his blog, legal scholar Gautam Bhatia argues that Gogoi’s tenure saw the drift of the Supreme Court 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’.257 Bhatia sees this drift to an executive-minded court in Gogoi’s use of ‘sealed cover jurisprudence’ while he was the chief justice.258 The executive was asked to submit replies in sealed covers on the basis of which the judiciary would pass orders. The contents of the ‘sealed cover’ were not known to the other parties to the litigation. This fundamentally impinges on the right to a fair trial. Justice Gogoi used this mode in litigations on Rafale, electoral bonds and Assam NRC, as well as in many other matters, rendering justice opaque.259

Former Supreme Court judge Lokur writes in the Wire how, in 2019, under the chief justiceship of Gogoi, a bench headed by Justice N.V. Ramana denied the petitioners a copy of the final Juvenile Justice Committee report on the detention of children in Kashmir with the report being submitted in a sealed cover to the court.

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