What does justice mean? The title of Ranjan Gogoi’s memoir begs the question

The autobiography of former Chief Justice of India and current member of the Rajya Sabha Ranjan Gogoi is set to be released on December 8. The title, Justice for the Judge, is as provocative as his stint as the chief justice of the Supreme Court. That the book seeks justice for the judge and not by the judge is not surprising.

What is fascinating, though, is that his use of the word “justice” points to how the word has been used in a “post truth” world, with its original meaning stretched, distorted and twisted beyond recognition.

Gogoi’s autobiography has been described by its publishers, Rupa, as a “no holds barred memoir” that covers a range of events and judgements, including the sexual harassment allegations made against him by a Supreme Court staffer; the Rafale case involving allegations of corruption relating to the purchase of French fighter jets and contempt proceedings against Congress leader Rahul Gandhi regarding his remarks about the matter; the petitions to allow women to enter Kerala’s Sabarimala temple; the National Register of Citizens in Assam and the much-debated judgment on the Babri Masjid in Ayodhya.

When read with this list of controversial events, the title Justice for the Judge indicates that this autobiography seeks a different sort of justice, far from formal justice in a court of law. It instead seeks to change public or popular opinion that has been critical of Gogoi.

Through the eyes of the writer

An autobiography is at best a narration of events of a life through the eyes of the one who lived it and experienced it. It allows the writer to bring forth facts and events that may otherwise have been hidden, or confidential, allowing the reader a deeper look into the logic of what was done and why it was done. While historians and researchers use autobiographies to reconstruct the past, the authenticity of these records are rigorously evaluated before being used.

The autobiography is therefore in a sense persuasive, in that it persuades the reader to view the world through the eyes of the writer. To use an autobiography that is essentially a one-sided account to seek justice is rather absurd for someone who was charged with dispensing justice at the highest seat of the judiciary – especially so when formal “justice” has already been provided. Let us look at just one of the many events discussed in this autobiography: the sexual harassment allegations.

When sexual harassment allegations against him by a Supreme Court staffer were reported the press in April 2019, Ranjan Gogoi headed a bench that heard the case suo moto. He presided over a case in which he was party, violating a vital principle of natural justice –
“nemo judex in causa sua’ – which prescribes that no one should be a judge in one’s own case.

The complainant in a detailed interview with The Wire related how she was punished for her complaint. She was transferred and then terminated for questioning the transfers; her family was targeted, with her husband and brothe- in-law suspended from their government jobs and another brother in law dismissed from service without reason; she and her family were harassed by the police and even subject to physical abuse, even as she and 11 members of her family were selected as potential targets for surveillance by an unidentified official agency of the government using the Pegasus spyware.

This allegation and the manner in which it was handled marred public perception of the Supreme Court, which through the Vishaka judgment has in the past sought to protect women from sexual harassment in the work place. As Justice AP Shah noted, the very same court was now flouting the Vishaka guidelines it had issued.

The Supreme Court had declined to comply with the attorney general’s advice seconded by Justice DY Chandrachud that an external committee be constituted to examine the complaint. Instead, the chief justice himself selected the judges who comprised the committee that eventually closed the complaint suo moto in the absence of the complainant.

The attorney general wrote a letter to all the Supreme Court judges strongly recommending that external members be included on the committee, a suggestion echoed by Supreme Court Justice DY Chandrachud who also advised against the committee proceeding ex parte (in the interests of one side) in the absence of the complainant. The complainant withdrew from the proceedings, claiming that it lacked sensitivity.

Questionable process

The process of inquiry under both the Vishaka guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, prescribes one member from a non-governmental organisation or association committed to the cause of women, on the internal complaints committee. Shah noted how the process followed was questionable with the complainant not allowed legal representation, the issue of victimisation of the complainant not referred to the committee and an order passed in secrecy with only the accused served the order in the guise of protecting judicial independence.

On reinstatement to her original position in 2020, the complainant took maternity leave with reports that she may never return to service.

Formal justice was ostensibly meted out, and Ranjan Gogoi acquitted of the sexual harassment charges. Isn’t this “justice” enough? What will the autobiography reveal that we don’t already know? Will we get a glimpse into the committee’s order? If so, why not make public the order of the committee and open it up to scrutiny?

Why cover it up, only to come out with an autobiography years later with the promise that it is a “no holds barred memoir”? Even if the autobiography provides a glimpse into the order of the committee, how sure can we be that this is not a partial or incomplete account?

There are so many questions that surface and yet one that begs asking. Is “justice” limited to what courts do? Clearly not, because if so, we would not have a former chief justice asking for justice outside the realm of the court. Despite the charade of legality in this case, the general public view that has reigned is that justice was sacrificed to save a judge.

In 1924 in a case in Great Britain, R v Sussex, the issue of judicial bias was taken up by the King’s Bench presided by Lord Hewart. A motorcyclist who was convicted by a bench of judges in Sussex for having caused an accident sued the Judges on the ground that the clerk assisting them was a partner of the law firm engaged to sue him for damages. Despite an affidavit filed by the judges stating that the clerk had abstained from discussing the case with them and that their decision was thus not biased, the Kings Bench quashed the conviction.

Lord Hewart’s dictum, which has been much quoted since and is now a standard principle regarding judicial bias, is worthy of recall: “It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

While the mere presence of a clerk interested in the case prompted the King’s Bench to set aside the conviction, the order of a committee set up by the chief justice of India to decide on a complaint against him, still stands to this day. Clearly all pretences of justice have been dropped.

What is significant about this dictum is that not only does justice matter, perception matters just as much. It is perhaps this perception of justice that this autobiography seeks to change. While the acquittal despite the lack of procedural justice may have let the former chief justice off the hook, public opinion indicated otherwise as it was perceived not as justice but as injustice. The autobiography thus seeks to influence and change this perception in his favour.

There are critical questions one needs to ask here. Can public opinion fill in for the lack of procedural justice in this case? More importantly, can public opinion, which the autobiography seeks to influence, supplant the need for formal justice? Can opinion undo the damage that has already been done to the supreme judicial institution in the country?

These are but a few questions one needs to ponder while reading Justice for the Judge.

Kaveri Thara is the pen name of Kaveri Haritas, Associate Professor, OP Jindal Global University.