Noisy judges and independent journalists are democracy’s first line of defence and a revolution, not mere reform, is needed to keep the institution of the judiciary responsive to the changes in society, the second most senior judge of the Supreme Court, Justice Ranjan Gogoi, said here on Thursday.
In line to be the Chief Justice of India, Justice Gogoi, while delivering the Third Ramnath Goenka Memorial Lecture on “The Vision of Justice”, told a packed Teen Murti Bhavan auditorium here that the judiciary was the “last bastion of hope” and it needed to be “uncontaminated”, more “pro-active” and on the “front foot” to preserve its moral and institutional leverage.
Quoting an article (from The Economist) titled ‘How Democracy Dies’ published in The Indian Express, he said that “…independent judges and noisy journalists are democracy’s first line of defence. Reports of the death of democracy are greatly exaggerated. But the least bad system of government ever devised, is in trouble. It needs defenders.”
“I agree, but will only suggest a slight modification in today’s context — not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges,” Justice Gogoi said to loud applause.
“A chain is only as strong as its weakest link. So is an institution. And if introspection is where we have to begin, we might as well begin there. Perhaps, we can hope and endeavour that in the future, it is not our finality, but really the infallibility that should define us,” he said. He said the judiciary has been endowed with “great societal trust” and it is this fact that gives it credibility and legitimacy. “It is a very enviable spot for an institution.”
Earlier this year, on January 12, Justice Gogoi, along with three of his Supreme Court colleagues, Justices J Chelameswar (now retired), Madan B Lokur and Kurian Joseph, had held an unprecedented press conference making public a letter they had written to Chief Justice of India Dipak Misra in November, raising questions on various issues pertaining to the functioning of the court, particularly allocation of cases. “It’s a discharge of debt to the nation which we have done,” Justice Gogoi had then said.
In a talk that blended philosophy — Carl Jung and Aristotle — and pragmatism, Justice Gogoi laid out his vision of justice. He said that the judiciary today “is not a poor workman who blames his tools but it is a workman with no tools.” He said: “.in the light of what a French author had once said, ‘Everything has been said already, but as no one listens, we must begin again,’ I will only ask and request those at the helm to finally listen so that we must not have to begin again.”
Underlining the divide between the “two Indias” — one that “believes it is the new order” and another that lives below a “ridiculously drawn poverty line” — he called for a “constitutional moment” of the judiciary which, he said, “has been long overdue”.
Citing a string of judgments, Justice Gogoi underlined the primacy of enduring Constitutional morality over “fickle” social morality. Significantly, this notion of “Constitutional morality” was invoked recently in the Delhi Government vs the L-G case and in the Supreme Court’s hearing of the case related to Section 377.
The Supreme Court has been evolving, Justice Gogoi said, and if the 1970-1980 decade was when it expounded the Basic Structure Doctrine (that certain aspects of the Constitution were inviolable), in the 1980s, it expanded the scope of Article 21 (protection of life and personal liberty), and by 1990s, it had became somewhat of a “Good Governance Court” by innovatively interpreting Constitutional provisions to address the inadequacies because of executive and legislative inactivity.
“In the first fifty years since our independence, the court has created a very sound jurisprudence which we continue to reap from. It is the inertia really that has kept us going till now. But the way things stand today, court processes are a trial even before the trial has begun. While I cannot say if it is a collective failure on our part, but for a nation governed by the rule of law, is it not a matter of concern that to this extent at least, we are defying the idea of inclusiveness? Not a reform but a revolution is what it needs, to be able to meet the challenges on the ground and to keep this institution serviceable for a common man and relevant for the nation,” he said.
“But I will certainly say that the judiciary must certainly be more proactive, more on the front foot. This is what I would call as redefining its role as an institution in the matters of enforcement and efficacy of the spirit of its diktats, of course, subject to constitutional morality ( separation of powers) again. I will even go ahead to say that the institution, at all levels, needs to become more dynamic in the matters of interpretation of laws. And, this is what I mean to say by a Constitutional moment of its own kind,” he said.
Recalling Ramnath Goenka, Justice Gogoi said he was someone who could speak truth to power. “Even if it came at a cost. To be ready to break, but not bend could be called obstinacy by some, and determination by others…I only feel that we need to ask ourselves some questions: Where is the Goenka in us; his ideals; his values? Is that extraordinary phenomena losing his relevance today, after all these years?”
Justice Gogoi quoted Alexander Hamilton, a founding father of the United States of America, to warn of the “union of the judiciary with either of the other two branches” of the government. “While contemplating the US Constitution, he (Hamilton) had said that the judiciary is the weakest of the three branches because it neither has the force of the Executive nor the will of the Legislature, but only judgment. This, and which I agree with absolutely, he said, was the ‘simple view of the matter’,” said Justice Gogoi.
“The complex view is this…while civil liberties will have nothing to fear from the judiciary alone, they will have everything to fear from the union of the judiciary with either of the other two branches,” he said. Agreeing with Ramnath Goenka’s view that “fierce independence” and an “enduring sense of inquiry without fear or favour” is the “bedrock of justice”, Justice Gogoi said, “I would like to add that ‘independence’ must always be responsible with due regard to established constitutional values.”
Earlier, welcoming Justice Gogoi, Chief Editor of The Indian Express Raj Kamal Jha said: “The courtroom and the newsroom are kindred spaces because the search for justice and search for facts both rely on an adversarial process. Both have to acknowledge that there are two sides or more to a story or case and each has to be heard, without fear or favour.” He said Justice Gogoi’s work and words, in the High Courts he served and the Supreme Court and a “winter morning on a lawn in the capital,” showed that he has always pushed to bridge the gap between what he calls “Constitutional idealism” and “Constitutional realism.” Between what is and what ought to be.
Welcoming the audience, Deputy Editor, The Indian Express, Seema Chishti said that the first two RNG Memorial Lectures delivered by then RBI Governor Raghuram Rajan and President Pranab Mukherjee had “helped shape the national debate.”
Delivering the vote of thanks, O P Jindal Global University’s founding Vice Chancellor C. Raj Kumar said that rule of law is about people and institutions taking complete responsibility and commitment to adhere to the Constitution. “Justice Gogoi has recognised that there is a symbiotic relationship between the principles of the rule of law and the aspirations of society to achieve justice. In fact, the vision of justice that Justice Gogoi articulated cannot be achieved unless and until all holders of power recognise that they need to follow the law,” he said.
The lecture was attended by Supreme Court Justices Madan B. Lokur, A K Sikri, N V Ramanna, D Y Chandrachud, Navin Sinha, Deepak Gupta and Ashok Bhushan; Supreme Court Secretary General Ravindra Maithani; acting Chief Justice of Delhi High Court Gita Mittal; Kerala HC Chief Justice Hrishikesh Roy; former CJI Justice R M Lodha; former Attorney General Ashok Desai, jurists Fali Nariman and Soli Sorabjee; senior Advocates Arvind Datar, Dushyant Dave, A M Singhvi, Siddharth Luthra, Shyam Divan, Sanjay Hegde, Sajan Poovayya; former Home Minister P Chidambaram; former Law Minister Ashwani Kumar; senior advocates Prashant Bhushan and Indira Jaising, advocate Madhavi Divan and CPI leader D. Raja.
The Express Group launched the RNG Memorial Lecture in 2016 to mark the tell-it-like-it-is spirit of Ramnath Goenka in the 25th year of his passing.