Pegasus Snooping & Gogoi Saga : Need For Supreme Court To Reopen Suo Motu Case

'No useful purpose will be served by continuing these proceedings'- said the Supreme Court in February this year while closing the suo motu case taken by it nearly two years ago to probe the "larger conspiracy" against judiciary.

The suo motu case titled In Re Matter Of Great Public Importance Touching Upon The Independence Of Judiciary was initiated in April 2019 in the wake of the sexual harassment allegations levelled by a Supreme Court staff against the then Chief Justice of India Ranjan Gogoi, now a nominated member of the Rajya Sabha. Gogoi's immediate response to the allegations was to convene a bench(also comprising Justices Arun Mishra and Sanjiv Khanna) to take this suo motu case, where he attempted to discredit the complainant in her absence and dubbed the complaint as a part of a 'larger conspiracy' hatched by plotters and fixers to destabilize the Supreme Court. The Court(bench comprising Justices Arun Mishra, RF Nariman and Deepak Gupta) in subsequent proceedings appointed former Supreme Court judge Justice AK Patnaik to probe into the 'larger conspiracy' angle, taking the assistance of CBI, IB and Delhi Police.

Meanwhile, an in-house enquiry conducted by three Supreme Court judges(Justices SA Bobde, Indu Malhotra & Indira Banerjee) – from which the complainant withdrew expressing apprehensions of bias – gave clean chit to Gogoi.

After the retirement of Gogoi, the Supreme Court reinstated with full backwages the complainant, who was earlier dismissed from service. Earlier, her husband and brother-in-law, both posted with Delhi Police, were suspended after she was fired from her job. They were also reinstated to services later. Why was she dismissed in the first place? Why was she reinstated? Why was no contempt taken against her if her allegations were false? These remain mysterious questions.

Justice Patnaik is reported to have submitted his enquiry report sometime in 2019, during the term of Gogoi as CJI. After sitting over the report for over one year, the Supreme Court(bench of Justices SK Kaul, AS Bopanna and V Ramasubramanian) quietly closed the suo motu case in February this year saying :

"We are also of the view that two years having passed and the possibility of recovery of electronic records at this distance of time is remote, especially since the scope of the enquiry and the power of the learned Judge is limited, no useful purpose will be served by continuing these proceedings".

For a case which was started with much sound and fury, this was an anti-climax of sorts. Neither the inquiry report absolving Gogoi nor the Patnaik panel report are made public.

Now, the shocking reports about Pegasus spyware has turned the focus back once again on the disgraceful events which happened during the tenure of Ranjan Gogoi as the Chief Justice of India. As per reports, the mobile number of the staffer who had raised sexual harassment allegations against Gogoi was in the potential list of Pegasus targets, along with the numbers of some of her family members. The reports indicate that their numbers were selected as potential targets soon after the woman came out in public with her complaint. While a forensic examination of the devices is needed to confirm if they were actually hacked by the spyware, the reports about the presence of these numbers in the potential list of targets is quite disturbing. These chilling reports need to be seen in the light of the statement made by NSO, the Israeli company which makes the Pegasus spyware, that its sells its services only to "vetted governments". That the Government of India is yet to make a clear and categorical statement denying the using of Pegasus services makes this development murkier.

While the reports of snooping on journalists, activists and political leaders in opposition raise troubling questions about the degree of democracy and protection of fundamental rights in India, the presence of the above said woman staffer and her family relations in the potential list of snoop targets is particularly concerning from the standpoint of judicial independence. The responses of the Government to the Pegasus scandal, which range from sophistry to weaving conspiracy theories to plain stonewalling of queries, do not inspire confidence at all. With no clear answers forthcoming from the government, a concerned citizen is left to the realm of speculation. Why were the woman staffer and her family members persons of interests as potential Pegasus targets? Was it done with the knowledge of the then CJI?

It is here the controversial tenure of CJI Gogoi comes to focus, during which the Apex Court, through its actions and inactions, protected and furthered the interests of the Executive on several instances. The nearly infructuous verdict in the CBI-Alok Verma case; the shaky clean chit given to Centre in the Rafale scam; the indefinite delaying of the hearing in the case challenging electoral bonds scheme; the steely reluctance shown in interrogating the government in the Kashmir habeas matters; the Ayodhya verdict with its shaky legal foundation - in these cases, the Supreme Court seemed to be in sync with the agenda of the government. Even as the head of the SC Collegium, Gogoi gave out the impression of playing to the tunes of the Centre, as indicated by the manner in which Justice Kureshi's transfer and elevation was handled.

During the term of CJI Gogoi, we saw the Supreme Court looking the other way when citizens complained of violation of basic rights. We saw the executive getting away with its actions unquestioned on several instances (more detailed in this article "CJI Gogoi - A Term of Misses and Omissions").

Now, the Pegasus controversy is forcing a concerned citizen to revisit the scandal-ridden term of Gogoi as CJI. The Pegasus reports, if true, indicate a firm hand-holding between the executive and judicial branches during his term, leaving a stain on the concept of judicial independence. Recently also, the Supreme Court in a judgment reiterated the need to maintain the separation of executive and judicial branches to preserve the independence of judiciary.

Those quotes from the judgment in the Madras Bar Association case are worth reproducing here :

"Article 50 of the Constitution of India provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. Article 50, occurring in a chapter described by Granville Austin as "the conscience of the Constitution" in his work titled 'The Indian Constitution: Cornerstone of a Nation', underlines the importance given by the Constitution makers to immunize the judiciary from any form of executive control or interference."

"Independence of the institution refers to sufficient degree of separation from other branches of the Government, especially when the branch is a litigant or one of the parties before the tribunal.

"Independence of courts from the executive and the legislature is fundamental to the rule of law and one of the basic tenets of the Indian Constitution. Separation of powers between the three organs, i.e., the legislature, the executive and the judiciary, is a consequence of the principles of equality as enshrined in Article 14 of the Constitution. Any incursion into the judicial domain by the other two wings of the Government would, thus, be unconstitutional".

Answers are needed on whether the Pegasus scandal had any role to play in creating circumstances for the judicial kowtowing to the executive during Gogoi's tenure as CJI. Therefore, there is an urgent need for the Supreme Court to re-open the suo motu case on 'larger conspiracy' to examine if there was any attempt to put the woman complainant and her family under surveillance and any effort to gain control over judiciary through such means. The Court needs to find answers to the questions relating to the sexual harassment scandal; lest this issue will remain a permanent scar on the judiciary. In the light of new developments, the name given to the suo motu case, which had then sounded vacuous, gets a meaning. Now indeed, it is a matter of great public importance touching upon the independence of judiciary.