By Arshia Jain

Published On: December 29, 2021 at 12:50 IST


Demosthenes and Aeschines’ rivalry is well-known for producing two classic court orations: “On the False Embassy” and “On the Crown.” In the latter, Demosthenes refers to Aeschines (an actor before entering politics) as “a performer in tragedy.” “I should deduce, Aeschines, that you chose this subject to demonstrate your eloquence and lung force, not to seek restitution for any transgression,” hefinished[i].” But, Aeschines, it is not the orator’s language that counts, nor the tone of his voice, but his willingness to share the people’s viewpoints…”

On January 12, 2018, four Supreme Court[ii] judges held a historic and unusual news conference, transforming aspirations for a clean and open system into “Super Saiyan[iii].” Justice Ranjan Gogoi, together with Justices Madan B Lokur and Kurian Joseph, sat next to Justice J Chelameswar, who headed the conference. Justice Gogoi was the next in line to become India’s Chief Justice at the time.

His attendance at the conference indicated that he agreed with the concepts being presented. The meeting was sparked by the contentious assignment[iv] of cases to a single bench and the failure to complete the memoranda for the nomination of justices. Even though these were two specific points of disagreement in the debate, there were larger concerns about political influence in the apex court’s operations. The gathering was a counterpoint to fears of a political nexus stretching from Tilak Marg to the Central Secretariat.

The other three justices were dubbed “philosophers of the French revolution” by the “suffering citizens,” who saw Justice Gogoi as a youthful Napoleon who would carry on the revolution. We had no idea that, like the historical Napoleon, he would betray the revolution. He talked but did not act, like Aeschines of Demosthenes.

Ranjan Gogoi’s Journey

CJI Ranjan Gogoi sought to serve as a watchful protector against the politico-intrusion. At the same time, he compromised on the Supreme Court’s spirit. During Justice Gogoi’s time as Chief Justice of India, there was a cascade of negative consequences for the preservation of constitutionally given basic rights.

Position Freedom

An urgent plea was filed the day after Gogoi assumed office as Chief Justice, seeking intervention in the government’s plan to deport seven Rohingya Muslims. However, the new Chief Justice rejected[v] the case, stating that the Myanmar government had acknowledged Rohingya refugees as citizens and that Myanmar was ready to absorb them. The rationale was a significant change from the Supreme Court’s earlier precedent, which recognized the government’s constitutional commitment to protect refugees from being returned to their home country, where they may risk persecution. The rationale was completely disregarding the fact that Rohingyas in Myanmar are subjected to terrible brutality and genocide.

The CJI then played a key role in establishing the judicial architect for Assam’s implementation of the National Register of Citizens, which resulted in the statelessness and constitutional disfranchisement of 19 lakh persons. The CJI answered[vi] that he would not allow any effort to “browbeat” the institution and denounced the frequent accusations of “bias” against judges when adjudicating on a PIL filed by Harsh Mander seeking a direction against the horrific circumstances of detention centers in Assam.

In his petition with the Legal Service Authority, he also replaced Harsh Mander as the new petitioner. “There are 900 foreigners in prison centers and more than one lakh twelve thousand who have mixed with the natives,” the Chief Justice was reported as saying. They’re on the electoral roll, and they’re casting their ballots. Is this how your government operates[vii]? … You want to build a five-star jail facility later? That is what you should do! 900 persons are housed in existing centers, compared to the thousands of people who have been deemed foreigners? Why aren’t their tens of thousands of them? And where will you be if there are so many (given the inhumane circumstances that exist in the centers as now)?”

During his tenure, the Supreme Court abandoned its tradition of civil rights in favor of a state narrative in these and a few other cases.

Judicial Circumvention

Another problematic posture taken by the CJI was judicial avoidance of assessing State activities claimed to be in breach of basic rights in a timely and thorough manner. This is evident in how matters concerning human rights breaches in Kashmir have been handled since Article 370 was repealed on August 5, 2019.

The Indian government imposed a complete ban on communication and Internet services, and people, including children, were detained indiscriminately. Despite the gravity of the situation, in the petitions filed by Kashmir Times editor Anuradha Bhasin (August 16), senior advocate Huzefa Ahmadi (September 16), and Marumalarchi Dravida Munnetra Kazhagam leader Vaiko, the Chief Justice did not take any effective measures, instead of establishing executive supremacy in Kashmir issues.

“No time owing to Ayodhya hearing[viii],” Chief Justice Gogoi said as he denied hearing a constitutional challenge to the amendment. Furthermore, the CJI recused[ix] himself from hearing civil rights activist Gautam Navlakha’s petition for the quashing of an FIR filed against him in the Koregaon-Bhima violence case without citing appropriate reasons. The public’s opinion of the Supreme Court’s independence was harmed as a result of this.

Dr. Faizan Mustafa, a renowned jurist, wrote[x]:

“We are unaware of any personal biases or prejudices that may be used as justifications for the en masse recusals…”

Enlightened people and supporters of our Supreme Court, both at home and abroad, are astounded by the court’s unwillingness to hear even habeas corpus petitions… To these individuals, the world’s most powerful court appears meek and submissive. In comparison, the British Supreme Court received much praise for its swift judgment to overturn Prime Minister Boris Johnson’s move to prorogue Parliament. One hopes that our judges, too, will rise to the new difficulties and, via their decisions, dispel any doubts about their independence. After all, they took vows to make decisions without fear or favor.

Investigation against CJI Gogoi’s for Sexual Harassment

The sexual harassment complaint leveled against Gogoi was the most contentious episode of his tenure, but the way it was handled[xi] added to the confusion. Instead of forming an impartial panel to investigate the claims, Gogoi nominated Justice SA Bobde[xii] to do so. The investigating committee then handed the CJI a clean bill of health. The committee deviated from the law’s process in that it continued with the proceedings notwithstanding the complainant’s withdrawal.

Lawyer Gautam Bhatia wrote in response to the entire affair and the investigation methodology[xiii]. The Supreme Court has undone the accomplishments of the previous two decades in one fell swoop.The Supreme Court has told us that power imbalance, due process, and basic fairness standards don’t matter when it comes to one of its own.

Failure to maintain the collegium’s integrity

The Supreme Court selections made by the collegium led by Chief Justice Gogoi drew a lot of attention and were tainted by controversy. On January 10, 2019, the collegium elevated Justice Sanjeev Khanna of the Delhi High Court to the Supreme Court[xiv], completely disregarding seniority and overriding as many as 32 justices (among various high courts). All of the inquiries about this appointment went unanswered, including one from a fellow Supreme Court justice[xv].

Apart from the arbitrary appointment, the Chief Justice’s collegiums made no major objections to the delay in appointing Akil Kureshi, Chief Justice of the Bombay High Court, as Chief Justice of Madhya Pradesh. Despite the collegium’s proposal being sent twice, the government waited on the decision. Finally, in response to government protests, the collegium moved[xvi] his nomination to the Tripura High Court. Because he sent current Union Home Minister Amit Shah[xvii] to police detention in the Sohrabbuddin Sheikh encounter case in 2010, the administration is expected to oppose Justice Kureshi’s promotion.

A similar situation occurred when Retd. Justice VK Tahilramani was recommended for the Meghalaya High Court despite her qualifications and seniority. Despite the State Bar Association’s protests[xviii], the collegium did not elucidate the decision’s raison d’être. Justice Tahilramani resigned in the end. There was conjecture about Tahilramani’s destiny, as there was in the case of Justice Kureshi, because of her 2017 ruling in the Bilkis Bano gang-rape case, which resultedin the conviction and life imprisonment of 11 accused in the post-Godhra slaughter.

Ayodhya Verdict and Sabarimala Review

Chief Justice Gogoi’s term came to a conclusion with decisions in two important cases. First, there’s the Ram Janmbhoomi-Babri Masjid property issue in Ayodhya, which spans 2.77 acres. Second, there is the Sabarimala review petition. The unanimous Ayodhya ruling handed Ram Lala 2.77 acres of property based on the “benefit of the doubt” of Muslims’ ongoing worship and Hindu parties’ faith over the inner courtyard of the Babri Masjid. The decision has been slammed for prioritizing hypothetical peace over the injustice caused by the mosque’s demolition.

The court imposed a strict double burden of evidence on Muslim parties: (a) they must prove they had control of the mosque’s inner courtyard; and (b) they must prove that Hindu devotees never prayed or visited the mosque’s inner courtyard to perform their rituals during the same time. The decision not only confused faith and law, but it also mishandled law and justice. It will always be arguable whether it was justice or simply a feeling of disdain.

Suhrith Parthasarathy and Gautam Bhatia, attorneys, wrote:

“On the other hand, in Ayodhya, the final judgment appears to reach an uneasy peace with a toxic political philosophy that resists genuine justice, restitution for past wrongs, and mutual tolerance.” What else could the last consolation — giving the Muslim parties land in a different site to compensate for the mosque’s demolition — be but another way of saying, “You are equal, but you must be separate”? On the Sabarimala review petitions, Chief Justice Gogoi delivered yet another majority decision. The review decision ignores basic legal jurisprudence on the idea of “legal review” and has no legal foundation.


George Orwell used the term “doublethink” in 1984 to describe a language used to accept conflicting concepts as true at the same time to retain enduring legitimacy. This was evident in Chief Justice Gogoi’s rhetoric before and throughout his tenure. Before Gogoi, the Chief Justice, Justice (Retd.) Dipak Misra was dogged by personal claims of corruption and prejudice.

Chief Justice Gogoi, who succeeded him, voiced aspirations of doing better, but he didn’t follow through on any of them. His tenure may not have sparked widespread public outrage, as Retd. Justice Misra did, but any legal eye can detect the overt and covert activities that marked a shift away from civil rights and justice. 

There have been times when Justice Gogoi has made significant decisions, such as putting the office of the CJI within the Right To Information Act (albeit there are certain restrictions), but he will be judged in his function as Chief Justice. After all, it’s not about the period of peace. Adversity does not develop character; rather, it exposes it.


Arshia Jain is a second-year law student at SVKM’s NMIMS, School of Law in Navi Mumbai, Mumbai, India, pursuing a BBALLB. When it comes to work, she is a dedicated and hardworking individual. She believes in pursuing one’s dreams and remaining optimistic throughout life.

Edited by: Aashima Kakkar, Associate Editor, Law Insider


[i] On the Crown by Bartleby (Last visited on December 29th, 2021)

[ii] Supreme Court crisis: All not okay, democracy at stake, say four senior-most judges (Last visited on December 29th, 2021)

[iii] Super Saiyan – CJI (Last visited on December 29th, 2021)

[iv] A Year After Four SC Judges’ Press Conference, Is Democracy Still in Danger? covered by the wire (Last visited on December 29th, 2021)

[v] Rohingya Will Be Deported, Supreme Court Says Myanmar Has Accepted Them (Last visited on December 29th, 2021)

[vi] Will not allow anyone to ‘browbeat’ institution: CJI  (Last visited on December 29th, 2021)

[vii] Why Harsh Mander Wanted CJI Gogoi to Recuse Himself From Assam Case (Last visited on December 29th, 2021)

[viii] ‘No Time Due To Ayodhya Hearing’: Supreme Court Postpones All Kashmir Cases (Last visited on December 29th, 2021)

[ix] Bhima Koregaon Case: CJI Gogoi Recuses From Himself Hearing Gautam Navlakha’s Plea (Last visited on December 29th, 2021)

[x] The Morality of Recusals | Guest Column  (Last visited on December 29th, 2021)

[xi] Lawyers’ bodies say CJI violated process in hearing own case covered by hindustan times  (Last visited on December 29th, 2021)

[xii] Justice SA Bobde to Conduct Inquiry into Allegation of Sexual Harassment Against CJI Ranjan Gogoi (Last visited on December 29th, 2021)

[xiii] Power imbalances and due processes don’t matter (Last visited on December 29th, 2021)

[xiv] Ignoring row over their elevation (Last visited on December 29th, 2021)

[xv] Sanjay Kishan Kaul objects to bypassing seniors in SC selection (Last visited on December 29th, 2021)

[xvi] Collegium changes decision by Indian Express (Last visited on December 29th, 2021)

[xvii] Centre Blocking Elevation of Justice Kureshi, Who Once Sent Amit Shah to Custody (Last visited on December 29th, 2021)

[xviii] Lawyers in TN protest against ‘arbitrary’ transfer of Justice Tahilramani (Last visited on December 29th, 2021)

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