Charge cooked to stop CJI from hearing certain cases
Charge cooked to stop CJI from hearing certain cases

There is nothing in common between the 46th Chief Justice of India (CJI) Ranjan Gogoi with his retired brother judge Markandey Katju from Allahabad and an allegedly “eccentric” Justice Chinnaswamy Swaminathan Karnan from Madras except that the latter two judges were issued contempt notices by Supreme Court benches of which the incoming  CJI was a part.

Both Katju and Karnan appeared before the Supreme Court when summoned for contemptuous conduct in 2016 and 2017 respectively. Karnan served six months in jail for contempt while Katju refused to be allegedly browbeaten by Justice Gogoi and was escorted out of the same court room over which he presided. Both Katju and Karnan have got into trouble for being “noisy judges needed in a democracy” as the 47th CJI himself declared in public.

Whether you call Karnan eccentric  or  irrepressible, this retired judge is now preparing to approach the International Court of Justice (ICJ) at the Hague to put the entire Indian judiciary under the global spotlight.  When a retired justice anywhere alleges he was oppressed by injustice somewhere, it makes news  everywhere.

Justice Karnan was boycotted by 20 judges of the Madras high court who wrote to the CJI that they could not work with him. When transferred to the Calcutta high court, a belligerent Justice Karnan wrote to the Prime Minister accusing his colleagues of various acts of corruption including getting a fake LL.B degree and treating him with contempt because he was a Dalit.

But Karnan apart, the 46th CJI,  Ranjan Gogoi, also sparked a controversy when he was present for a media briefing on January 12, 2018 on the lawns of Justice Jasti Chelameshwar’s official bungalow. Justice Kurien Joseph and Madan Lokur remained silent spectators but Justice Gogoi showed his mettle when confirming that the allotment of a PIL to a cherry-picked bench by CJI Dipak Misra was one of the reasons why Indian democracy was in danger.

The PIL sought a fresh probe into the mysterious death of Judge Brijgopal Loya who died of alleged cardiac arrest on December 1, 2014 while at a wedding reception of a judge’s daughter. “Yes,” replied the future CJI to a reporter’s question if the cherry-picked bench was one reason for the press conference, leading to speculation that Justice Gogoi would be superceded as CJI. Later, a three-judge bench of CJI Dipak Misra, A M Khanwilkar and D Y Chandrachud declared there was nothing suspicious in Judge Loya’s death as there were two judges present.

So, when the 45th CJI Dipak Misra retires on October 2, amidst customary effulgent praise and flattery at the function organised by the Supreme Court Bar Association, no lawyer may dare to state Misra also had the dubious distinction of being the first CJI to face an impeachment motion while in office and for facing charges of bench-fixing from his successor-in-office, Ranjan Gogoi,  plus the entire collegium.

Now, to return to Justice Karnan, it was the 46th CJI Ranjan Gogoi who declared in his concurring judgment with Jasti Chelameswar, that the process of selecting judges needed to be changed. Gogoi, with his senior colleagues, sentenced a belligerent Justice Karnan to six months jail, after observing that “his public utterances had made the Indian judiciary a laughing stock.”

The point here is that both the seniormost judges, Chelameswar and Gogoi who concurred with CJI Dipak Misra that Karnan, left them with no choice but to send him to jail, acknowledged the defects of secret selection of judges where sometimes, the kith-and-kin of those who have held high public office become judges “due to their brand image,” opines advocate Mathews Nedumpara who has launched the National Lawyers Campaign to fight this evil. The 47th CJI is himself the son of former Assam chief minister Keshab Chandra Gogoi who belonged to the Congress.

Former Supreme Court judge Asok Kumar Ganguly, who was earlier the chief justice of the Madras high court, initiated the proposal to make Karnan a high court judge. Ganguly was indicted for “unwelcome behaviour of a sexual nature” towards a woman law intern in 2013. The proposal for Karnan’s elevation was accepted by the 37th CJI K.G Balakrishnan, himself the first Dalit CJI.

Balakrishnan was accused of lying to the media in 2010 by former Supreme Court judge H L Gokhale, to shield an alleged tainted DMK minister A Raja, an accused in the telecom scam. Balakrishnan’s family was later accused of garnering disproportionate wealth during his tenure as CJI from 2007 to 2010.

Justice Markandey Katju has said in his blog “Justice Karnan is no doubt a bit crazy” forgetting that he, too, was accused on prime time news of being “crazy” when he called Subhash Chandra Bose “a Japanese agent” and Mahatma Gandhi “a rascal”. Katju got a contempt notice from the Supreme Court when he wrote in his blog that: “He (Justice Gogoi) has shown that he does not know an elementary principle of law, namely that hearsay evidence is not admissible”.

Justice Katju was referring to a judgment penned by Justice Gogoi in 2016 altering a rapist’s death sentence to life imprisonment. The trial court and Kerala high court sentenced Govindachamy to death  for raping and killing an innocent girl, Soumya, after pushing her out of a running train in 2011. While unconscious and covered with blood, he brutally raped and robbed her.

The Supreme Court rarely overturns the findings of the trial court when it is confirmed by the high court. But in this case, a three-judge Supreme Court bench comprising Justices Ranjan Gogoi, Prafulla Pant and Uday Umesh Lalit declared the rapist did not have the intention to kill his victim. Although Govindachamy pushed her out of a running train and raped her while unconscious. After which she died  in hospital. Not only Katju but also the Kerala chief minister condemned this judgment.

This prompted Justice Katju to write that “this judgment needs to be reviewed in an open court hearing…” before going on to add that Justice Gogoi did not know the elementary legal  principle that hearsay was inadmissible by the courts. And so whether the 46th CJI Ranjan Gogoi will tolerate “noisy judges like Karnan and Katju and independent journalists” during his 13 months in office to ensure rapists and murders like Govindachamy hang, remains to be seen.

Olav Albuquerque holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.

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