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Admin 2020-03-19

19 March 2020: The Hindu Editorial Analysis

1) Competitive impropriety: On Ranjan Gogoi’s Rajya Sabha nomination


  • Retired judges should not accept a Parliament seat lest it be seen as a political reward.
  • The President’s nomination of former Chief Justice of India, Ranjan Gogoi, as a Rajya Sabha member so soon after his retirement will be seen as a crass example of a regime rewarding a member of the judiciary for meeting its expectations during his tenure. 
  • It will be futile to argue that it is a well-deserved recognition for an eminent jurist. The gap of four months between his retirement and nomination, and the fact that a series of decisions in his court were in seeming conformity with the present government’s expectations militate against such a justification. 
  • The second argument, that there have been instances of retired Chief Justices being nominated to the Upper House or appointed Governors, does not cut ice either, as it is nothing more than a dubious claim to the same level of impropriety. 
  • In fact, references to the late CJI Ranganath Mishra and Justice Baharul Islam as valid precedents reflect quite poorly on the executive, and amount to competitive impropriety. 
  • There continues to be a perception that these were lapses in propriety. Justice Mishra’s commission of inquiry absolved the Congress from any organisational responsibility for the 1984 anti-Sikh riots. Justice Islam exonerated a Congress Chief Minister of wrong-doing in a financial scandal in Bihar. 
  • The party had helped Justice Islam move both ways between Parliament and the judiciary. He quit the Upper House in 1972 to take office as a High Court judge. In 1983, he quit as a Supreme Court judge to contest an election.
  • Mr. Gogoi’s appointment cannot be seen, as he has sought to project, as a way of ensuring cohesion between the judiciary and the legislature. He no longer represents the judiciary, and his contribution will be limited to the expertise and knowledge he can bring to debates in Parliament. 
  • Any attempt to create ‘cohesion’ between the two wings would necessarily encroach on the judiciary’s role as a restraining force on the executive and legislature. 
  • He should have rejected the offer, considering not only the nature of the judgments that Benches headed by him had delivered in the Ayodhya dispute and Rafale investigation, and the administrative decisions he had made in prioritising some cases above matters such as the validity of electoral bonds and Kashmir’s altered status.
  • These will be coloured, in retrospect. Also, he ought to have followed the example of his former colleagues who had declared that they would not accept any post-retirement work from the government. 
  • And one cannot forget that his tenure was clouded by an employee’s complaint of sexual harassment, which acquired greater credibility after she was reinstated following his exoneration by a committee of judges. 
  • As for the government, making such an offer to a just-retired CJI is not mere brazenness. It indicates an alarming intention to undermine judicial authority so that the elected executive is seen as all-powerful.

 

2) In Upper House nomination, a fall for ‘aloofness’


  • The nomination of a former Chief Justice of India to the Rajya Sabha is a blow against the judiciary’s independence.
  • Within five months of his retirement as Chief Justice of India, Justice Ranjan Gogoi has been nominated to the Rajya Sabha by the government. Shortly before his retirement from the Supreme Court of India, he delivered several important verdicts with far-reaching political consequences that left the government pleased, including the Ayodhya judgment. 
  • Before that, Justice Gogoi dismissed a review of the Rafale fighter aircraft deal without substantially dealing with the grounds on which the original judgment, negating an independent investigation, had been challenged. 
  • The original judgment relied upon several pieces of false and misleading information, conveyed to the Supreme Court by the government, in an unsigned note and handed over in a sealed cover.

  • Key judgments handled: During his tenure, Justice Gogoi also presided over and pushed through the National Register of Citizens (NRC) in Assam, an exercise that has excluded more than 19 lakh people from the final version of the citizenship register, and which has been widely criticised on several grounds. 
  • In short, the exercise presided over by him led to a huge humanitarian crisis, but fed into the government’s narrative and methods by which it now seeks to undertake a nation-wide NRC exercise, and further a divisive politics.
  • Then there was the Sabarimala temple review. A Constitution Bench judgment of the Supreme Court held that excluding menstruating women from entering the temple was discriminatory, and therefore against “constitutional morality”. 
  • A Bench headed by Justice Gogoi gratuitously referred these issues to a larger Bench, much to the delight of the government.
  • One could multiply the cases which Justice Gogoi decided during his tenure as the Chief Justice of India or in the run-up to it, and it would be safe to say that his judgments left the government pleased, with scarcely any politically-sensitive case being decided against the government’s wishes. 
  • His tenure, especially as the Chief Justice of India, only left many observers puzzled about him — he was a judge who had participated in a press conference held on January 2018, criticising the then Chief Justice of India (and his predecessor), Dipak Misra, and accusing him of abusing his powers as master of roster to fix politically-sensitive cases before convenient benches.
  • There was also the occasion when he delivered the Ramnath Goenka lecture, in 2018, just before his elevation as the Chief Justice of India, where he eloquently declared that the country needs not only noisy journalists and independent judges but even independent journalists and noisy judges. One expected thus as the Chief Justice of India, that he would be robustly independent in the interests of justice and equity and uphold the rule of law.
  • A turning point: So what led to the virtual collapse of his independence after becoming the Chief Justice of India? Allegations of sexual harassment against him give us a good insight into this. A female staffer who was asked by him to work at his residence, accused him in an affidavit of detail, of harassment soon after he became the Chief Justice of India. 
  • The action taken against her was astounding. Not only was she dismissed from service in an ex-parte hearing on frivolous grounds, but her brother-in-law, who was inducted to the Supreme Court staff under Justice Gogoi’s discretionary quota, was also terminated without assigning any reasons. Soon after, the Delhi Police suspended her husband and his brother - again on baseless charges. 
  • A fabricated case was registered against the staffer by a complainant who was thereafter untraceable; she was harassed by the police on the basis of this. She was then taken by the station house officer of the Tilak Marg police station to the Gogoi residence and made to apologise; she submitted herself to this only because of the terror of her harrowing experience at the hands of the Delhi police.
  • Immediately after her ordeal (that was detailed in the affidavit to the judges) was published by news portals, Justice Gogoi called for an extraordinary hearing, on Saturday (along with Justice Arun Mishra), where he accused the woman staffer of being a criminal. 
  • Justice Gogoi sat as a judge in his own cause in a case he titled “In Re: A Matter of Great Public Importance Touching Upon the Independence of the Judiciary”. However, the disrepute that this brought upon India’s highest judiciary and the furore caused by the hearing, forced him to appoint an in-house committee headed by the present Chief Justice of India, which quickly absolved Justice Gogoi in extraordinary ex-parte hearings. 
  • In these hearings, the woman’s request for being allowed a lawyer, cross-examination of witnesses and recording of proceedings were all refused, forcing her to walk out.
  • The report absolving Justice Gogoi, was put out by the Supreme Court registry as a press release, but a copy of and substance of the report has not been made available even to the complainant.
  • It is not possible for the Delhi police to have embarked upon acts of malafide harassment of the woman staffer and her family, without the influence of Justice Gogoi himself. 
  • In fact, one of the complaints on the basis on which her husband was suspended and disciplinary proceedings initiated against him was a complaint by Justice Gogoi’s Secretary.
  • I am privy to the fact that just before his retirement, Justice Gogoi used several channels to get the woman to withdraw her complaint against him. These channels included staffers of the Supreme Court registry as well as senior government officials. 
  • In the end, the staffer’s termination was withdrawn by the Supreme Court on the orders of the present Chief Justice of India with retrospective effect and with payment of full back wages, after Justice Gogoi retired. She was also given her due of maternity leave for six months. 
  • This is truly extraordinary given that Justice Gogoi had accused her of being a criminal in open court and the present Chief Justice of India who restored her job and benefits, had disbelieved her complaint in the in-house committee.
  • It is against this background that we need to look at Justice Gogoi’s nomination to the Upper House, on March 16.
  • A forgotten code: The 16-point code of conduct for judges or as it was called the “Restatement of Values of Judicial Life” (adopted at a Chief Justices Conference in May 1997) states: “6. A judge should practice a degree of aloofness consistent with the dignity of his office”; 7. A judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned”.
  • Explained | How is a Supreme Court judge to be probed?
  • Obviously this “aloofness” is a most essential trait needed from politicians or functionaries of the government. Unfortunately these values seem to have been forgotten by judges who invite politicians to their personal functions, eulogise them in public or call them for personal favours. 
  • One can understand that there could be some in the political class who may be long-standing personal friends of judges, but then it is incumbent on such judges not to hear and decide cases of those politicians who are their personal friends. 
  • Judges can also interact with functionaries of the government in their official capacity for official work. But we now see the repeated spectre of judges hearing and deciding cases of politicians with whom they have a personal camaraderie.
  • This code of conduct also lays the basis of how post-retirement conduct ought to be. For example if a judge after deciding politically sensitive cases involving particular political parties or politicians, soon after retirement seeks and gets a plum post such as a Rajya Sabha nomination by those very politicians or parties, it would obviously raise serious questions about his or her independence as a judge when he or she had decided those cases.
  • Justice Gogoi and the government’s actions in the sexual harassment case and the offer of a Rajya Sabha seat by the government, raise serious doubts about the fairness of many critical judgments, including the ones mentioned above that were under Justice Gogoi’s watch. 
  • The precedent that he has set strikes a blow against the independence of the judiciary. I hope that this shameful act will lead to public opprobrium which will deter other judges from emulating such conduct.

 

3) Time for a powerful display of humanity


  • In a pandemic it is easy to apportion blame, but this is a moment for the world to be standing together
  • As the COVID-19 pandemic fells country after country, many in India are wondering if we are somehow different. Globally, it took roughly 45 days for the first 100,000 cases. It is likely to take nine days for the next 100,000. The global death count is now doubling every nine days and stands at 8,248, with 207,518 confirmed cases. 
  • That is how epidemics work — they gather steam as infected individuals go on to infect even more people. Confirmed cases in India, as of today stand at 169, much lower than small countries such as Iceland (around 250). Could this really be the case that we have fared better than everyone else?
  • Probably not. Testing in India remains abysmally low. Only about 10 in a million people in India have been tested, compared to say nearly 120 in a million in Thailand or 40 per million in Vietnam. 
  • The stated explanation is that the limited number of test kits are being conserved for when they are truly needed but when is the need greater than right now? There are probably shortages even in being able to procure adequate supplies given that many countries are seeking to buy the limited stocks. 
  • Testing is the most important thing we could be doing right now. As the Director General of the World Health Organization, Dr. Tedros Ghebreyesus, said recently about the need for more testing, “You cannot fight a fire blindfolded.”
  • Prevent undercounting: We need to identify coronavirus-infected patients in a timely manner in order to increase our chances of preventing secondary infections. There is no shame in saying that we have far more cases than what we have detected so far. 
  • Even the United Kingdom, which has a far better health system than India, has admitted that it is probably undercounting its true infections by a factor of 12, and is likely have about 10,000 cases. Is it possible that India with 20 times their population has only 169 cases?
  • If widespread testing were to commence in India, the number of confirmed cases would likely climb to the thousands very quickly. This is something we have to be prepared for without panic or fear-mongering. 
  • This is how epidemics move and the real numbers should spur us into positive action. At some stage, it is possible that the government may have to put in place very strict measures on quarantining and closures, much like what China had to do to control the epidemic in Wuhan.
  • From a disease perspective, I often get asked how bad things could get. There is no easy answer. If we escape the worst, either because this virus mutates to a less virulent form or because there is something about its temperature or geographical sensitivity that we know nothing about, then we should count our blessings. 
  • Viruses do mutate and generally to be less lethal. If the projections from Europe are applicable in India, our ‘namastes’ and clean hands notwithstanding, the prevalence in India would be upwards of 20%. 
  • In other words, we should expect to see about 200-300 million cases of COVID-19 infections and about four and eight million severe cases of the kind that are flooding hospitals in Italy and Spain at the moment. More importantly, these cases are projected to appear in just a two to four-month window.
  • In the current scenario, we are not ready. India has somewhere between 70,000 and 100,000 intensive care unit beds and probably a smaller number of ventilators. That is simply inadequate. 
  • The next two weeks should be spent on planning for large, temporary hospitals that can accommodate such numbers. If we are lucky, we will not need them but as Dr. Anthony Fauci, Director, U.S. National Institute of Allergy and Infectious Diseases, has said, “we should get criticized for over-reacting” rather than being under-prepared.
  • Unprepared for pandemics: This all sounds doomsday-like. But we have known for decades now that of all catastrophic events to befall humanity, between an asteroid hit and a nuclear war, a disease pandemic has always been the highest on our list of impact and probability. 
  • My community of infectious disease epidemiologists have spent years warning governments to prepare for such an eventuality, and have written countless articles and hosted many meetings on this subject. 
  • There were some changes after the Severe Acute Respiratory Syndrome (SARS) but not nearly enough. Pandemic preparedness always took a backseat to the crisis of the moment. And in fairness, there is truly no amount of preparation that can fully mitigate such an occurrence.
  • In a time of crisis, it is easy to blame government or China or someone else. But this is really a time to stand together, keep an eye on our neighbours, friends, families, co-workers and indeed anyone who has less than we do. 
  • That includes your household help, security guards, vendors and indeed anyone who touches your life. It is a time to see how we show the best of our human values while facing a crisis of a proportion none of us has ever witnessed in our lifetime.
  • Things are about to get a lot worse. Let us hope that this brings out the best in us, and not the worst. Whether we know this or not, these events are just a dress rehearsal for the more challenging events such as climate change that are likely to be with us this century. And if we take care of each other, we will survive both these challenges with our humanity intact.