1. Introduction
For many years now, the Indian Supreme Court has traded heavily on its reputation as a bastion of progressive authority—one that is willing and able to right the wrongs of faulty government and harmful social practices alike.Footnote 1 Justices on the Court cultivate images as towering, mythic figures through the language they use, the analysis they conduct, and the values they stand in protection of.Footnote 2 (Their multivolume opinions don’t hurt, either.) Much of this awe-inspiring reputation is justifiable given the efforts of various justices at various times to look beyond their own intuitions and the technicalities of law toward a higher good.
But times are difficult for the Indian Court, inasmuch as it has been beset by successive scandals involving individual justices as well as long-standing power struggles with the central government. One of the most recent and more striking of these troubles is an allegation of sexual harassment and intimidation issued by a Court staffer against then sitting Chief Justice of India (CJI) Ranjan Gogoi. The Court’s response—a closed-door, no-counsel, dubiously documented inquiry, in which Gogoi himself sat on the initial panel hearing the complaint—has prompted repeated protests and public criticism.
This article draws on media analysis as well as conversations and observations conducted in the immediate aftermath of the inquiry to explore what the “CJI Scandal” means for judges and judging in contemporary India. I argue that the inquiry as well as the justices’ overall treatment of the episode form part of a possible broader shift in Indian judging. Far from being the product of an institution imbued with mythic qualities, judging (especially the Court’s power to judge itself) is increasingly coming to represent an example of mythos speech, or “an assertive discourse of power and authority … something to be believed and obeyed.”Footnote 3
The ongoing transformation from mythic to mythos in Indian judging, although neither exact nor complete, is especially significant right now. India is struggling with rising Hindu nationalism and the centralization of power under Prime Minister Narendra Modi’s second term. The recent passing of the Citizenship Amendment Bill (now Act) and the strong probability that it will be used in conjunction with other measures to render Indian Muslims stateless have triggered widespread protests and worries for the survival of democracy in India.Footnote 4 In this context, among those who oppose Modi’s politics, judges and judging at once carry the aura of a last, best hope while also increasingly representing another potential chink in the armour of Indian democracy.Footnote 5 Moreover, although the CJI Scandal is far from the most serious reputational blow the Court has experienced in recent years, it combines assertions of both power and victimhood within a masculinist framework in a way that eerily resembles the ruling Bharatiya Janata Party’s long-standing approach to electoral politics.
Section 2 draws on literatures as varied as critical legal studies, anthropology, and classics to explain the contrast between mythic and mythos as the terms are used here. Section 3 documents the transformation of the Indian judge—by which I largely mean the Indian Supreme Court justice—into a figure of mythic proportions, arguably peaking in the 1980s and 1990s. Section 4 turns to the last 20 years of Indian Supreme Court history to show how judging has—slowly and inconsistently, but nonetheless definitely—edged away from being the act of a mythic figure. Instead, judging is increasingly presented and experienced as a discourse of authority—an instance of mythos speech that is powerful rather than mystical. Finally, Section 6 turns to the allegations against Chief Justice Gogoi (and the Court’s response to them) as a particularly acute example of the broader shift being described here.
2. Mythic qualities versus mythos speech
This section will briefly distinguish between myths, things mythic, and the Greek term (now a term of art in certain scholarly disciplines) mythos. To be sure, all of these terms are related and, moreover, they have all generated considerable bodies of scholarship in fields that are in some instances quite distant from law. For my purposes, however, it is worth drawing boundaries between them now, since later on I will only be concerned with the mythic and mythos.
Myths are narratives and cultural artefacts; they are part of the “stories we tell ourselves about ourselves” that make up culture as a whole.Footnote 6 Although myths tend to be associated with the achievements of supernatural beings—Arthurs and Krishnas—they are not necessarily beyond history or humanity.Footnote 7 Nevertheless, the truth described by a myth is something different from the truth captured by a tape recorder or documented during a lab experiment; it is a truth about how things really are and how they should be. In other words, a myth offers descriptive information that is not the same as the description offered by a historian or journalist, even if we acknowledge that historical and journalistic accounts are inescapably partial (in both senses of the term). Scholarship on myths has ranged from anthropology (e.g. Tylor, Frazer, Lévi-Strauss, Malinowski) to psychology (Freud, Jung) but its most well-known recent exponents have been concentrated in religious studies and classics (Eliade, Lincoln).Footnote 8 As part of a broader interest in the interaction between narrative and law, myth has also featured in work by scholars in the critical legal studies and law-and-society traditions (e.g. Kennedy, Delgado, Engel), but the concept’s influence there has been limited.Footnote 9
The adjective mythic has fared somewhat better in the scholarly study of law, particularly of Euro-American law, because it references a quality that is easily and appealingly applied to things legal. Law is mythic because its “quality of being in time … but also out of time” renders it “self-totaliz[ing].”Footnote 10 Similarly, “[t]he Judge is a mythic figure” because of the way he is “supposed to ‘submit’ to something ‘bigger’ and ‘higher’” than himself and consequently must “struggle to achieve his (or her) own constraint.”Footnote 11 Mythic, here, does not refer to a distinct-if-related universe whose happenings can tell us something about ourselves—what we are and what we should be. Rather, it signals that things and people in our world carry some overtones of that other place. Put differently, the mythic is other-worldly (awe-some, idealized) and consequently it is not inherently positive or negative in a this-worldly way, although it can be one or the other.
For some considerable time, mythos and logos were understood to be in opposition to one another: mythos (much like the modern English usage of “myth”) represented speech that was imaginative, deceptive, irrational, and unverifiable, while logos speech was accurate, truthful, reasoned, and knowable.Footnote 12 The transition from mythos to logos, from speech that is broadly symbolic to speech that is broadly rational, from “anthropomorphism to abstraction, and religion to philosophy,” is commonly dubbed the Greek Miracle.Footnote 13
Although mythos and logos are still largely held to be contrasting concepts, classicists have more recently begun to dispute which term denoted which kind of speech for the Greeks themselves, as well as the stability and timing of that assignation. In particular, some scholars have argued that Homer and Hesiod—whose mythos is conventionally described as being supplanted by the logos of Heraclitus and Plato—viewed mythos speech in a way that had nothing to do with modern “myth.”Footnote 14 Instead, for them, mythos represents the candid, assertive, and (usually) upright speech of men made in the context of war or assembly, while logos is the wily, pleasing, often deceitful speech associated with women.Footnote 15
Out of this far-from-exhaustive account of the complex relationship between myth, mythic, and mythos, I want to highlight two archetypes that are useful for understanding ongoing developments in Indian judging. The first is Duncan Kennedy’s concept of “the judge” as a mythic figure. Kennedy describes judging as “one of the domains in which we recognize the possibilities of talent, greatness, and genius” and the judge as a figure characterized by “religious or monastic struggle … [a] wielder of trained moral intuition and … the scourge of corruption.”Footnote 16 Individual judges may be female, but the judge “is one of the multiple archetypes of virtuous male power” whose role models are “God, the good Father of a large family, the King, and Solomon.”Footnote 17 In other words, the judge is a mythic figure precisely because he attempts to embody other-worldliness and to the extent that he succeeds in doing so.Footnote 18
The second is Bruce Lincoln’s reinterpretation of mythos speech (pl. mythoi). Lincoln argues that the mythoi of Homer and Hesiod was not “mythos” at all (in the sense of being myth-like) and that different types of mythos speech have distinct relationships to goodness and power. One of these variants is mythoi spoken in the assembly, “the unvarnished assertions of men who believe their strength, position in society, and/or the justice of their cause entitles them to prevail.”Footnote 19 This type of mythos speech is most often uttered by a “powerful male [who] either gives orders or makes boasts” and the speech itself “forces consent from those to whom it is addressed.”Footnote 20 Less commonly, “crooked” mythoi are represented by “acts of perjury and corrupt judgments … they permit the worse sort of case and the worse sort of man to prevail; that is, within legal contexts, they function much as logoi do elsewhere.”Footnote 21 As a result, mythos (crooked or straight) is emphatically this-worldly because it is enabled by and confirms the authority of the speaker vis-à-vis his (and it is his) audience.
Both mythic speakers and mythos speech are strongly masculine—a commonality that is neither surprising nor, for the purposes of the discussion below, insignificant. Conversely, but just as importantly, they represent different relationships to power. Mythic figures like the judge are worthy of the authority they possess because they try to wield it according to defined parameters. By contrast, mythoi are not necessarily uttered by deserving or conventionally good authority figures even if the candid nature of “straight” mythoi imbues them with some positive overtones.Footnote 22 Consequently, the transition from mythic to mythos that I will argue is beginning to take shape in Indian judging is one that is fraught with implications for both speaker and audience. As demonstrated by the CJI Scandal that is discussed in Sections 4 and 5, one important aspect of the transition from myth to mythos—both cause and effect—has been the empowerment of male judges when accused of sexual misconduct.
3. On the infallibility of the supremes
It has become surprisingly difficult, in an even more surprisingly short space of time, to imagine that justices of the Indian Supreme Court ever inspired reverence. Personal and professional failings, institutional cowardice, and a tendency towards petulance in the face of criticism have largely dominated recent media coverage and popular discussion of the Court. Nevertheless, and although this was not always the case, for a significant portion of the twentieth century, the Court and its justices represented something much more positive: a commitment to an innovative, agile, and socially progressive democratic polity as imagined in the nation’s charter.
India’s first several Supreme Court justices were markedly patrician. Two of the Court’s most well-known historians, Granville Austin and George Gadbois, describe the men who sat on the Court roughly through the end of Jawaharlal Nehru’s inaugural prime ministership (1947–64) as having immense “strength of character” and coming from “a socially prestige-ful and economically advantaged family.”Footnote 23 Justices in this period were quite likely to have “received some part of their higher education in England” and to have had fathers or grandfathers who were Sanskrit scholars or lawyers, or who had been knighted by the British monarch.Footnote 24 While their integrity and legal acumen were rarely questioned, neither was their commitment to an understanding of the Constitution that was more conventionally liberal and decidedly more conservative than the reformist impulses of Nehru’s administration. Most notably, Supreme Court opinions during India’s first 15 years stymied legislative efforts to restrict the freedom of expression in the furtherance of the state’s reformist agenda (as in Romesh Thappar Footnote 25 ) and to curtail the right to property (as in various cases and constitutional amendments surrounding the nationalization and redistribution of property).Footnote 26 Put simply, “Nehru, his ministry, and the Parliament had their views; the judiciary had its interpretation of the Constitution, and the two branches disagreed sharply during the years of getting started.”Footnote 27
The justices’ reputation did not fare better in the 15 or so years following Nehru’s prime ministership. This period is usually dominated by their spectacular failure, in the mid-late 1970s, to withstand the anti-democratic impulses and actions of Indira Gandhi’s government. In ADM Jabalpur v. Shivkant Shukla (1976), the justices ruled that habeas corpus did not survive the proclamation of a national state of Emergency.Footnote 28 It is hard to overstate the negative impact ADM Jabalpur has had on the Court’s reputation. Over 60 years later, the case is still referred to as “The Darkest Hour in Indian Judicial History”Footnote 29 and its eventual official overturning in 2017 was widely portrayed in the Indian media as an intergenerational acknowledgement of wrongdoing, insofar as the opinion that officially overturned it—Puttaswamy v. Union of India Footnote 30 —was authored by the son of one of the ADM Jabalpur justices.Footnote 31 ADM Jabalpur gave rise to two fears that have haunted discussions of the Indian judiciary ever since: that the Supreme Court would become beholden to the federal government (in the way that the Chief Justice during Jabalpur, A. N. Ray, was obliged to Indira Gandhi for his unorthodox elevation to the chief’s seat) and that the Court would not stand guard on behalf of the people against the failings—malicious or otherwise—of the other branches.
All of this changed with the development of public-interest litigation (PIL), which in India describes “a distinct way of articulating a legal complaint” rather than “legal work or advocacy done for the greater good or for those who cannot afford representation.”Footnote 32 PIL complaints are not subject to traditional standing requirements (like personal harm) or briefing requirements (like formal writ petitions), and courts hearing PIL matters often take suo motu cognizance of issues, conduct independent fact-finding, act as quasi-arbitrators, and require progress reports from the parties involved.Footnote 33 Because they concern the violation of fundamental rights, PIL complaints are filed directly with the Supreme Court and high courts in their capacities as courts of original jurisdiction under Articles 32 and 226.Footnote 34
This form of litigation represented a powerful turning point in the history of the Indian Court, both domestically and internationally. With its arrival, as the conventional narrative goes, “leading Supreme Court Justices apologized, in word and deed, to the people of India for judicial abdication during the 1975–77 Emergency period” and the Court signalled that it was “at long last becoming, after thirty two years of the Republic, the Supreme Court for Indians.”Footnote 35 That narrative arguably derives in part from the fact that PIL’s sudden appearance on the Indian judicial scene did not follow any abrupt shift in personnel on the Court; indeed, the two Supreme Court justices most associated with the early development of PIL, P. N. Bhagwati and V. R. Krishna Iyer, were both appointed to the Court in 1973 (two years before the start of the Emergency) and, moreover, Bhagwati was one of the four justices who affirmed the suspension of habeas corpus in ADM Jabalpur. And although inside India PIL appeared to be nothing so much as a judicial mea culpa, outside the country, it arguably become the Indian judiciary’s claim to fame because of its compelling mix of legal innovation, progressive politics, and judicial independence.
For nearly 30 years, PIL enjoyed a virtually unblemished—and considerably deserved—reputation as a means of extending the promise of India’s democracy to all its citizens: “early PIL cases forced negligent town councils to provide slum dwellers with basic sanitation facilities, released individuals whose pre-trial detentions exceeded the maximum penalty for their alleged crimes, and compensated women raped by on-duty Indian soldiers.”Footnote 36 The justices who developed and furthered this body of jurisprudence were described in glowing, often heroic terms. They were individuals whose “[j]udicial creativity … has enabled realisation of the promise of socio-economic justice made in the Preamble to the Constitution of India,”Footnote 37 “[who] recognised the possibility of providing access to justice to the poor and the exploited people,”Footnote 38 and who gave rise to a “distinctly Indian” legal phenomenon.Footnote 39 Indeed, “[n]o area of Indian law has been written about as extensively (and almost entirely hagiographically) as PIL” and “[t]here are more American law review articles on PIL than on any other area of Indian law.”Footnote 40 PIL has, perhaps more than any other single factor, contributed to the transformation, both domestically and internationally, of the Indian Supreme Court justice into a figure of mythic proportions.
Alongside the rise of PIL, the justices’ reputations have been bolstered by an expansive approach to Article 21 of the Constitution, which provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”Footnote 41 Beginning with the 1978 case Maneka Gandhi v. Union of India, the Court began to read “life” broadly, to the degree that there is now an established body of Article 21 jurisprudence that “extends from the prohibition against torture to the right to sleep.”Footnote 42 By introducing unenumerated rights into Indian constitutional jurisprudence, Article 21 played a significant role in many of the Court’s more progressive and celebrated opinions. In Unni Krishnan, the Court held that Article 21 requires the state to provide free and compulsory primary education (this case was eventually followed by a constitutional amendment to that effect).Footnote 43 In National Legal Services Authority, the Court’s mandate that the state must recognize a third gender rested on the idea that Article 21 “protects the dignity of human life” and that gender-identity expression is “integral to a life with dignity.”Footnote 44 And in Puttaswamy, Justice Chandrachud explored four decades of jurisprudence to find that the right to privacy inheres in Article 21’s guarantee of life and personal liberty.Footnote 45 One of the “Grand Advocates” of Indian litigation has gone so far as to say that Article 21—“the Grand Personal Liberty Clause in our Constitution”—“has helped the Apex Court in its new role—as the institutional Ombudsman of Human Rights in India.”Footnote 46
Impressive as they may be, the development of PIL and the expansion of Article 21 would not have by themselves built a reputation for the justices as a “last resort for the oppressed and the bewildered”Footnote 47 if the Court on which they sit had not been so accessible. A good part of this accessibility is intentional and was baked into the structure of the Court by the Constitution’s framers, who designed an entity that would have “wider jurisdiction than any other superior court in any part of the world.”Footnote 48 In its capacity as a constitutional court, the Indian Court not only advises the president, interprets the Constitution, and adjudicates disputes between the states and the union; it also enforces, as a court of original jurisdiction under Article 32, citizens’ fundamental rights.Footnote 49 Similarly, under Article 127, the Court has the power to review its own decisions in light of new evidence, apparent error, or any other sufficient reason.Footnote 50
At the same time, both these and other features have been transformed by the justices so that the Court’s customary practices produce even more accessibility than what is mandated or even expressly authorized by the Constitution.Footnote 51 Even the chief architect of the Constitution, B. R. Ambedkar, only envisioned Article 32 as allowing the justices to grant interim relief in cases involving the violation of fundamental rights, rather than enabling them to conduct the full hearings that have become commonplace in Article 32 cases.Footnote 52 Although the actual number of these Article 32 hearings remains small and the number that are filed as PIL suits is even smaller, this part of the justices’ activities occupies an outsize role in defining public perception of the Court as an approachable authority.Footnote 53 Similarly, although the justices have been stringent in allowing review petitions under Article 127, they have “judicially created the remedy of a ‘curative petition’, or a ‘second review petition’” using their powers to do complete justice under Article 142.Footnote 54 In the long-running litigation over women’s access to the Sabarimala temple, for instance, former Chief Justice Gogoi allowed over 60 review petitions—seemingly despite the lack of any grounds for review—thereby responding to the severe backlash that greeted the Court’s original decision by drawing more parties into the litigation.Footnote 55
Finally, it must be said that the Court’s reputation for accessibility and concern for the common citizen is at least in part a function of how regularly the justices engage with those citizens. Indian justices simply “appear far more days in court than their counterparts in most other countries;”Footnote 56 for instance, “the [Indian] Supreme Court heard arguments for 190 days in 2007, while the U.S. Supreme Court sat for only 38 days.”Footnote 57 Between 2000 and 2010, the number of new admission matters filed with the Court increased by 97%, while the number of regular hearing matters admitted by the Court increased by an almost-equal 96%.Footnote 58 Indeed, the history of the Court’s docket has been one of unceasing and at times exponential growth, and notwithstanding long-running power struggles between the Court and Parliament, legislators have rarely suggested that the Court’s jurisdiction be limited or its case-load be reduced. Instead, legislators have overwhelmingly preferred to add more justices to the Court (although not enough to be proportional with docket increase).Footnote 59 Whether for reasons of ethical obligation, institutional self-interest, or sheer population size, justices on the Indian Supreme Court work—and are worked—very hard.
As this quick sketch suggests, Indian Supreme Court justices have cultivated and often merited a reputation for heroic intervention. Their doctrinal innovations have earned them accolades among domestic practitioners and international observers, just as their catholic approach to case selection and their intense workload have led the Court on which they sit, despite its apex position and immense authority, to be frequently and quite reasonably called a “people’s court.”Footnote 60 Moreover, the justices’ positive image has only been heightened by the always-implicit comparison between the Court and the other branches of Indian government. In 2019, 233 of 539 sitting Lok Sabha members were individuals who have faced criminal charges, while India’s ranking on the 2018 Transparency International Corruption Perception Index improved to 78 out of a total of 180 countries surveyed.Footnote 61 In contrast to these elected officials, the Supreme Court’s enthusiastic adoption of PIL, its expansion of Article 21 jurisprudence, and its accessibility have won it an aura of dignified and erudite populism. Set against this background, the Indian Supreme Court justice has not simply been a legal innovator or an enlightened jurist, but a vital ally of the underserved and marginalized who are forsaken by the very legislators they elected—in other words, a truly mythic figure. However, this admirable reputation has begun to tarnish over the last 20 years.
4. Supreme decline
Observers of the Indian Court have criticized a range of practices and moments from its recent history, many of which were celebrated not too long ago. PIL, once one of the most widely recognized features of the Indian legal system and proof of the Indian Court’s progressive credentials, is now increasingly viewed as having been co-opted by urban elites. Article 21 jurisprudence, once viewed as a promising avenue for pursuing social goods that do not fit easily within the parameters of constitutional text, is now increasingly perceived as unwieldy and incoherent. The docket overload that has sometimes been a testament to the justices’ work ethic and the accessibility of the legal system is now increasingly seen as an impediment to realizing the goals of the Constitution. Beyond all this, a number of other long-percolating issues have reached sufficient intensity, maturity, or frequency as to become significant concerns in their own right: the relative lack of transparency and accountability in the judicial appointments process, the changing and mostly growing authority of the Chief Justice, as well as several well-publicized instances of corrupt or unethical judicial behaviour involving the apex court. This section outlines a few of these developments that have, collectively, eroded the Court’s reputation as the heroic guardian of the average Indian citizen.
Most commentary regarding the transformation of PIL has the flavour of a “romance gone wrong.”Footnote 62 After an extended early phase in which PIL seemed to function in exactly the way it was intended to, namely by providing the marginalized and their advocates with a way to hold the state accountable for its shortcomings, later PIL cases seemed to favour both elite individuals and elite interests.Footnote 63 The exact timing of this shift is subject to some dispute, but it is widely believed to have begun in the early 1990s—roughly alongside India’s economic liberalization in 1991—and to have become clearly visible in the nature and outcomes of PIL cases by the early 2000s.Footnote 64 As one commentator put it:
In the first seven to eight years of PIL, there was … clarity that where PIL was employed the court’s constituency would be the affected people …. By the time the decade of the 1990s got under way, the court … was confronted with conflicting interests, and with having to decide which interest ought to prevail. The right of over 30 per cent of the residents of Delhi to their shelter in the slum settlements was pitted against the need to “clean up” the city. The right to a relatively unpolluted environment by means of the relocation of industries was pitted against the right of the working classes to their livelihood …. Even the right of the victims of the Bhopal gas disaster to receive compensation was pitted against the bureaucratic imperative of winding up the processing of claims.Footnote 65
In other words, justices of the 1990s and 2000s were more likely to support the state’s efforts at economic development than to sympathize with those whom it left behind. This change in attitude was made starkly apparent by shifts in the language used in PIL opinions, as when Justice Kirpal likened slum dwellers to pickpockets or Justice Kaul referred to pavement dwellers as encroachers.Footnote 66 Although court watchers remain divided on how to respond to this perceived loss of interest in the plight of those individuals who were the original intended beneficiaries of PIL, there is considerable agreement that Supreme Court justices can no longer be relied on to intervene, ex machina, in the lives of India’s most disadvantaged citizens.Footnote 67
Whereas PIL has shifted in a relatively uncomplicated way from empowering the poor and marginalized to empowering urban elites, Article 21 jurisprudence has morphed, absorbed, and expanded with abandon. In the 1963 opinion in Kharak Singh,Footnote 68 the Supreme Court introduced a “dignity-based conception of the ‘right to life’” by drawing on a US Supreme Court case that described the right to life as extending to something “more than mere animal existence.”Footnote 69 Since then, the Indian Court has made enthusiastic use of dignity as a basis for adjudication under Article 21 without ever really defining the boundaries of dignity violations.Footnote 70 Similarly, since the 1980s, the Court has interpreted Article 21 to encompass positive rights (such as the right to education) without developing a normative framework for the scope, content, and coverage of those rights.Footnote 71 Indeed, in one of the earlier Article 21 cases to gain traction outside India, M.C. Mehta v. Union of India,Footnote 72 the Court “seemingly found the right to life in an inanimate object”—namely, the Taj Mahal.Footnote 73
What began as a largely, if not uniformly, admired effort at introducing unenumerated rights and a due process clause into the Indian Constitution is now frequently described using words like “indeterminate,”Footnote 74 “confused,”Footnote 75 “unclear,”Footnote 76 or, more sarcastically, “cornucopia” and “supermarket.”Footnote 77 Even commentators who are sympathetic to the progressive outcomes that have often been achieved via Article 21 jurisprudence (like those who appreciate some of the early Article 21 cases that were decided as PIL suits) now increasingly characterize Article 21 as “a provision that has come to mean everything to everyone in recent years, but which seems to mean nothing when it actually matters”—hardly the stuff of heroic intervention.Footnote 78
The docket overload and expense of Supreme Court litigation have also served to place the justices increasingly beyond reach. Around ten years ago, the Court’s backlog was approximately 50,000 cases and 17% of regular hearing matters had been pending for more than five years.Footnote 79 A 2019 study reports that the overall backlog remains roughly the same (close to 56,000 cases) and that if “the rate of incoming cases remains constant … it will take 20 years to clear the docket of the Supreme Court of India (SCI) at ideal efficiency.”Footnote 80 Beyond this, the expense of pursuing litigation in the nation’s apex court and capital city means that a significant plurality of cases that are appealed to the Supreme Court come from two to three high courts that are geographically close to Delhi or are situated in wealthy states.Footnote 81 All of this has meant that “social policy groups have tended to shy away from the courts” in large part “because of resource considerations” and “because of the extraordinary delay present within the courts.”Footnote 82 Since much of the Court’s positive reputation is due to its engagement with precisely the kinds of causes that are espoused by these groups, its growing marginalization in the fight for social reform and rights vindication is particularly significant.
As if all of this were not enough, the Supreme Court has, over the last 20 years, been damaged by several scandals or fraught circumstances of the justices’ own making. It is not possible to exhaustively survey all of these events, nor even those that have occurred in the last five years.Footnote 83 However, in the rest of this section, I will use a few events as exemplars of broader trends within and involving the Court that have contributed to its reputational decline.
A 2015 opinion, usually called the NJAC Case,Footnote 84 captures both the essence and the severity of the first of these trends: the Court’s increasing unwillingness to tolerate any governmental influence on its operations and especially on its appointments process. Article 124 of the Constitution provides that justices of the Indian Supreme Court are appointed by the president in consultation with the CJI, but it offers little guidance regarding the particulars of this process.Footnote 85 The first few decades after independence passed with the justices being selected via a consensus-building process involving the Chief Justice, the president, and the Union Ministry of Law and Justice; however, Indira Gandhi’s interventions to secure a subservient Chief Justice during the Emergency disrupted that pattern.Footnote 86 Three landmark cases concerning the relationship between the CJI and various other governmental actors eventually produced the current “collegium system” in which the Chief Justice recommends a candidate for elevation to the Supreme Court after conferring with the four most senior justices on the Court as well as the most senior justice acquainted with the high court on which the candidate sits.Footnote 87
Importantly, the collegium system (which applies in slightly modified form to high court appointments as well) involves no formal mechanism for investigating candidate backgrounds and no instructions for handling a potential Supreme Court justice against whom allegations of wrongdoing have been made.Footnote 88 The enormity of these deficiencies has been made apparent via painful experience: in 2009–10, the collegium attempted to elevate to the Supreme Court a judge of the Madras High Court against whom, as it turned out, there were considerable and credible allegations of corruption. When the judge would not relinquish his high court post, the only discipline he did—indeed, could—receive was a transfer to a less prestigious high court whose judges and lawyers were understandably displeased by this choice of punishment.Footnote 89 Because of this incident and others like it, “there is a seeming consensus amongst academics, lawyers, political commentators and a large section of the judiciary that the collegium system has proved counterproductive” because its goal of protecting judicial integrity by guarding against outside influence has resulted in a decline in judicial integrity through the protection of bad apples.Footnote 90
Against this backdrop, the Supreme Court’s decision to invalidate a constitutional amendment to reform its appointment process generated significant controversy. In 2015, the Court determined that the 99th Amendment to the Constitution violated the independence of the judiciary and, by extension, the “basic structure” of the Constitution; the Amendment had been passed to address the shortcomings of the collegium system by creating a National Judicial Appointments Commission (NJAC).Footnote 91 The Commission would have consisted of six members: the Chief Justice, the two senior-most justices of the Supreme Court, the union minister for law and justice, and two eminent laypersons (who in turn would have been selected by a committee consisting of the Chief Justice, the prime minister, and the leader of the opposition in the lower house of Parliament).Footnote 92
Ever since the NJAC decision, the judicial appointments process has been caught up in an antagonistic and unproductive exchange—now stretching over the tenure of several Chief Justices—between a Court that has been weakened by the scandals described in this article, and a central government that has been emboldened by a definitive victory at the polls in 2019. The response to NJAC among lawyers and academics has been divided, with some remarking that the decision proves the collegium “function[s] as imperium in imperio, and are accountable to none,”Footnote 93 while others have decried the invalidated Commission “an ugly compromise strengthening the government and political elements.”Footnote 94 Nevertheless, the collegium system itself remains almost universally disliked for its opacity and lack of accountability.Footnote 95 Even former justice Kurian Joseph, who had sided with the majority in NJAC, has been public about his regret at having ruled against the proposed Commission.Footnote 96
For those who were troubled by the invalidation of the NJAC and the persistence of the collegium system, the past few years have not provided much reason for optimism. This is in great part due to the plethora of controversies that have surrounded recent Indian Chief Justices, which is especially significant given the primacy of the Chief Justice in the collegium system and his ability to assign cases to specific benches. Indeed, of the four Chief Justices to hold office since NJAC was decided, three have been dogged, to varying degrees, by allegations of corruption or improper use of authority. None, however, has generated complaints as numerous and as varied in substance as Dipak Misra.Footnote 97 In the remainder of this section, I will outline two episodes that occurred during Misra’s tenure as Chief Justice (28 August 2017–2 October 2018) that exemplify the increasingly authoritarian and insular behaviour associated with Indian Chief Justices and, by extension, with the other justices and the Court at large. The extension is not gratuitous: although much of the troubling behaviour by Chief Justice Misra (and, in Section 4, by Chief Justice Ranjan Gogoi) could only have come from someone occupying the Chief Justice’s seat, not all of it falls into that category and there is a strong overlap between Misra’s approach to adjudication before and after his elevation to the chief’s role.
In the case of the “Judge Loya affair,” Misra ensured that a politically sensitive PIL would be heard by a junior Supreme Court justice who would presumably rule in favour of a powerful defendant. What made the case stand out was the high-profile nature of the issues and personnel involved: Loya served on a special tribunal responsible for matters involving the Central Bureau of Investigation (CBI)Footnote 98 and he is widely believed to have been killed while hearing a murder-in-custody case in which the president of the nationally ruling Bharatiya Janata Party, Amit Shah, was a primary defendant.Footnote 99 The junior Supreme Court justice to whom Misra assigned the investigation of Judge Loya’s death eventually asked to be recused, and Misra reassigned the matter to a bench consisting of himself, Justice Chandrachud, and Justice Khanwilkar.Footnote 100 That bench found that Loya’s death had been natural.Footnote 101 Going further, the bench criticized the lawyers who had acted on behalf of Judge Loya’s family for casting aspersions against both the Supreme Court and the Bombay High Court (which had also been involved in the matter) and for forgetting to “maintain institutional civility towards judges.”Footnote 102
In what is often called the “medical-admission scam,” Misra again exercised his authority to assign cases to troubling effect. The case involved a medical college that had been temporarily banned from admitting students by the Medical Council of India and that was alleged to have subsequently bribed a high court judge (and perhaps even Supreme Court employees) in order to restart operations ahead of schedule.Footnote 103 Misra allowed the college to withdraw a petition in the Supreme Court and to instead approach the high court judge who was allegedly bribed later on; the judge promptly granted the college interim relief (allowing it to resume admissions), while Misra forbade the CBI from engaging in steps to catch the judge red-handed as he returned a portion of his bribe.Footnote 104 Later on, a watchdog organization, the Campaign for Judicial Accountability and Reforms (CJAR), filed a petition in the Supreme Court asking for an independent investigation into the entire matter and asking that the Chief Justice not be involved in deciding whether the investigation was itself necessary. Misra redirected this petition to himself even though it concerned him and even though it had already been assigned through the Court’s automated system to a senior colleague and that colleague was on the verge of assembling a bench to decide whether an investigation was appropriate. When the colleague chose to press ahead with his order, Misra assembled a different bench to hear the order and the order was annulled.Footnote 105 CJAR, meanwhile, was slapped with “exemplary costs” (punitive damages) of ₹2,500,000 (approximately $35,000 USD).Footnote 106
Because of these and other incidents, Misra’s tenure as Chief Justice was further marked by two events that were, at the time, astonishing in the insular and rigorously tight-lipped world of India’s legal elite. First, on 12 January 2018, four senior justices—Chelameswar, Gogoi, Lokur, and Joseph—held a press conference to air their grievances about the Court and about Misra. “This is an extraordinary event in the history of the nation,” said Justice Chelameswar, adding that “[i]t is with no pleasure that we are compelled to call this press conference. But the administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months.”Footnote 107 Although the justices were circumspect in articulating their concerns, their comments largely went to the manner in which Misra assigned cases: assigning important matters to junior justices, assigning matters arbitrarily, and acting unilaterally in assembling benches.Footnote 108 The justices’ public airing received mixed reactions. While a former Chief Justice said that Misra should have “addressed and solved” the grievances and a senior advocate expressed “a sense of agony” that the four justices should have been driven to such extreme measures, a former Attorney General said he wished the justices had not acted as they did and a former Supreme Court justice declared that the four justices should be impeached.Footnote 109 All observers agreed, though, that the spectacle of sitting Supreme Court justices publicly critiquing their Chief Justice was unprecedented and spoke volumes about the internal dynamics of the Court, to say nothing of impacting its broader reputation.
Second, in the aftermath of the Loya affair, opposition parties submitted notice to the vice president and chair of the upper house of Parliament that they would be initiating impeachment proceedings against Misra.Footnote 110 The motion was signed by over 70 parliamentarians, which, even accounting for a few signatories who had retired and could no longer be officially counted, was well above the 50 signatures required to initiate proceedings in the upper house. This too was unprecedented: Misra was the first Chief Justice against whom a motion of impeachment had been filed.Footnote 111 The motion was dismissed by the vice president, but not before speculation began to grow that Misra was somehow beholden to the central government.Footnote 112
It is possible that the troubles of Chief Justice Misra’s tenure were simply unusually well publicized, thanks to recent changes in legal reporting in India.Footnote 113 Nevertheless, Misra’s term is emblematic of a broader trend whereby judges of the Indian Supreme Court and high courts display a heavy-handedness towards the judicial process and judicial authority. For instance, the CJI has always had absolute control of the Court’s roster, which amounts to considerable authority over the Court itself: the Chief Justice “can override the automated system of distributing cases and explicitly assign cases to his own or another bench” and he can “speed up the hearing of cases or holdup a politically sensitive matter for years.”Footnote 114 He can also punish colleagues by exercising his power to constitute benches, either by placing
a non-conforming judge on a two judge bench where he or she is the junior judge (meaning that he or she will rarely be speaking for the bench) or not seat that judge on the larger and more powerful constitution benches of five or more judges.Footnote 115
However, Misra regularly used this prerogative for reasons that, whatever they may have actually been, seemingly had little to do with ensuring the highest possible quality of analysis or fit.
At the same time as Misra asserted the power of the Chief Justice, he and other justices also established that the Court is an authority meant to be “believed and obeyed” rather than one that inspires, rescues, or leads by virtuous example. Indeed, in each one of the events described in this section, the justices have collectively demonstrated a heightened sensitivity towards limitations on their authority as well as towards any indications that the litigating parties or the general public are unwilling to unquestioningly accept their positions. The NJAC ruling, the disapproval of Judge Loya’s attorneys (“institutional civility towards judges”), the exemplary costs assigned to CJAR, and even the Court’s responses to criticisms of the Chief Justice’s case allocation—all of these exemplify the increasing sense in which judicial speech is mythos speech.Footnote 116 Similarly, Shanti Bhushan and Prashant Bhushan—a father–son duo of Supreme Court lawyers who carry weighty records of public and non-partisan service—have both received contempt citations for simply suggesting that various past Chief Justices were corrupt.Footnote 117
In other words, it is increasingly not possible to question the Chief Justice’s or even the Court’s behaviour without inviting censure for endangering the sole governmental champion of the average Indian citizen. However, in espousing this position, the justices of the Supreme Court have furthered a second transformation—one in which the goal of the judge is less and less that of being “[a] wielder of trained moral intuition and … the scourge of corruption” and more that of being, quite simply, “believed and obeyed.” In the final section of this article, I draw on ethnographic research conducted during the tenure of Misra’s successor, Ranjan Gogoi, to demonstrate the shift from mythic to mythos in greater detail.
5. Mythos in the making: Ranjan Gogoi and the 2019 sexual-harassment scandal
As Section 3 has made clear, the “CJI Scandal” is something of a misnomer for the events of 2019, since there have been several scandals involving recent Chief Justices of India. Nevertheless, I will continue to use the term because it provides a useful shorthand for referencing the allegations of sexual harassment against Ranjan Gogoi as well as the Court’s responses to those allegations. This section will begin by providing a quick overview of the sequence of events that led to the CJI Scandal by drawing on media analysis and my own experiences conducting interviews and engaging in participant observation in April-May 2019, while I was in Delhi working on a related project.Footnote 118 Importantly, I do not speak to the truthfulness of the allegations against Gogoi: not only is truthfulness often difficult to establish in sexual-harassment cases and especially difficult to establish with respect to the CJI Scandal (in large part because of the procedural features described below); it is irrelevant to the focus of this article.Footnote 119 Instead, my goal is to show how the response to the CJI Scandal, from both the Court and from Chief Justice Gogoi himself, exemplify the new turn towards “mythos” in Indian judging, or “an assertive discourse of power and authority … something to be believed and obeyed.”Footnote 120
5.1 CJI-scandal timeline
On 19 April 2019, a former staff clerk of the Supreme Court filed a complaint of sexual harassment against then sitting Chief Justice Ranjan Gogoi and sent the complaint to the home addresses of 22 sitting justices.Footnote 121 On 20 April, the Chief Justice and a two-judge bench that he had constituted called a special Saturday hearing to discuss the allegations.Footnote 122 The Attorney General and Solicitor General were present at this hearing but the complainant herself was not.Footnote 123 Gogoi “denied all charges and said that ‘there [was] a larger conspiracy to destabilise the judiciary.’”Footnote 124 The hearing lasted approximately 30 minutes, during which (in addition to denying the charges and alleging that there was a larger conspiracy afoot) the Chief Justice observed that the complainant had two criminal complaints pending against her, while the Solicitor General suggested that the complaint reflected an attempt to blackmail the judiciary.Footnote 125 At the conclusion of the hearing, the bench issued an order stating that it would not yet issue a judicial order in the matter, prompting speculation as to what kind of order it was that the Court had just issued.Footnote 126 Still more confusingly, the “non-order” was only issued under two names: those of the two justices selected by Gogoi, Arun Mishra and Sanjiv Khanna, even “though CJI Ranjan Gogoi was very much a part of the Bench.”Footnote 127
The secrecy and inconclusiveness of this initial hearing combined with the fact that Gogoi sat on a panel that was hearing a complaint against himself (and later seemingly attempted to erase his presence by redacting his name from the order) led to calls for a second hearing. Between 23 and 25 April, a three-judge bench was constituted and its composition adjusted, following which this panel held two in-house hearings, on 26 and 29 April, with the complainant present. She was not permitted to have an attorney with her. Indeed, at the 26 April hearing, one of the justices allegedly told the complainant to not even speak with any attorneys,Footnote 128 while the bench collectively appears to have suggested that the complainant was goaded into action by the various high-profile attorneys who were advising her pro bono.Footnote 129 She was also not allowed to have a support person with her during either of the hearings, which she had requested both for morale and for legal assistance, and because she was hard of hearing and wanted assistance in understanding what was being said.Footnote 130 At the 26 and 29 April hearings, the complainant also made several other requests besides those for an attorney or support person, all of which were similarly denied. She asked for the hearings to follow the “Vishaka Guidelines” for workplace sexual-harassment inquiries and, failing that, for information about the procedures that would be followed in her particular case.Footnote 131 Likewise, she asked for video-recording of the hearings; for a written record of her statements as transcribed by a staff member who was present during the hearings; for the right to call and cross-examine witnesses; and for the messaging and call records of two relevant mobile numbers.Footnote 132 All of these requests were denied.
On 27 April, the complainant filed a letter with the Court declaring that, on her way home from the 26 April hearing, her car had been followed by two men on a motorcycle; she provided a partial licence-plate number for the motorcycle so that its owner could be identified.Footnote 133 On 30 April, which was scheduled to be a third day of hearings, the complainant reiterated many of her requests and noted that, on her way home from the 29 April hearing, she was once again followed, this time by four men on two motorcycles.Footnote 134 When her requests were once again denied, she read from a prepared statement that articulated her unwillingness to participate any longer in the hearings.Footnote 135 The bench warned her that they would continue without her, and she left.Footnote 136 On the following day, 1 May, the Chief Justice appeared before the bench.Footnote 137
For a few days immediately following the complainant’s 30 April exit from the hearings, there was little in the way of formal developments and, unsurprisingly, media speculation ran rampant. Finally, on 6 May, the Secretary-General of the Supreme Court issued a three-sentence public announcement that is reproduced in its entirety here:
The In-House Committee has submitted its Report dated 5.5.2019, in accordance with the In-House Procedure, to the next senior Judge competent to receive the Report and also sent a copy to the Judge concerned, namely, the Chief Justice of India.
The In-House Committee has found no substance in the allegations contained in the Complaint dated 19.4.2019 of a former employee of the Supreme Court of India. Please take note that in case of Indira Jaising v. Supreme Court of India & Anr. (2003) 5 SCC 494, it has been held that the Report of a Committee constituted as a part of the In-House Procedure is not liable to be made public.Footnote 138
Negative responses were swift and vehement. A journalist whom I was scheduled to meet for coffee on 7 May told me that he would be reporting on a protest that had been scheduled for that day in front of the Supreme Court; he suggested that I attend since I was interested in the Court’s recent history. I did, and—in keeping with what others have reported regarding that protestFootnote 139 —was struck by the overwhelming show of force on display.Footnote 140 Water cannon, Delhi police personnel, and RAF (Rapid Action Force) personnel stood on the Court-side of the street facing a few dozen (overwhelmingly female) protesters, who were still milling around and chatting when I arrived at around 10:30am. A handful of observers, many of whom were lawyers or law students, stood against a fence behind the protesters. After speaking with a few of the women who seemed to be in positions of leadership, I stationed myself in front of the fence alongside the other observers. The fence would prove significant: just a few minutes into the peaceful chanting, the protesters were herded onto the first of two police buses and I—after quickly weighing up the complications of being a pregnant foreign national in an Indian jail against my anthropological desire to learn through experience—slid pre-emptively behind the fence into safer, clearly “observer” territory.Footnote 141 As I later discovered from conversations and media reports, over four dozen protesters, including several relatively senior women, had been detained that morning.Footnote 142
This is not the story of police or military brutality in modern India—that story exists, has been told, and needs to be told even more often in light of the many ways the Indian state exercises brute force against its own citizens.Footnote 143 Despite the heavy-handedness of the state’s reaction and the fact that some protesters suffered minor injuries, the demonstrations on 7 May—and, it seems, on other days and in other citiesFootnote 144 —were comparatively unproblematic as far as police behaviour is concerned. The problem with the state’s response during the protests, as with the Court’s response during the inquiry itself, was that it positioned the law—and, in particular, the judge—as a power that “forces consent” rather than one that wields a “trained moral intuition.” The extent to which Supreme Court justices have come to embody the former over the latter became clear as conversations around the CJI Scandal coalesced around particular themes. In the second half of this section, I will take up four of these themes: the absence of disciplinary procedures, the Court’s lack of interest in self-regulation, its attempt at historical erasure, and its preoccupation with reputational harm.
5.2 Modelling mythos at the Supreme Court
There is no identifiable procedure for dealing with allegations of sexual harassment against the CJI. There is barely a procedure for dealing with allegations of sexual harassment against the other judges of either the high courts or the Supreme Court. To the extent that there is an “in-house procedure” for dealing with these individuals, that procedure does not apply to the Chief Justice. Indeed, the Chief Justice is the one responsible for initiating and leading the in-house process:
When the complaint is received by the CJI directly or it is forwarded to him by the President of India the CJI will examine it …. After considering the complaint in the light of the response of the judge concerned and the comments of the Chief justice of the high court, the CJI, if he is of the opinion that a deeper probe is required into the allegations contained in the complaint, shall constitute a three member Committee consisting of two Chief justices of High Courts other than the High Court to which the Judge belongs and one High Court Judge. The said Committee shall hold an inquiry into the allegations contained in the complaint. The inquiry shall be in the nature of a fact finding inquiry wherein the Judge concerned would be entitled to appear and have his say. But it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses and representation by lawyers.Footnote 145
Because there is no formal mechanism for processing complaints against the Chief Justice himself, the Court was technically correct to imply that it was not obliged to follow any procedure in particular. It is less clear that the procedure it did follow—the “in-house” process used for allegations involving all other judges—did not mandate public disclosure of the final report exonerating Gogoi. As many commentators have argued, the Court’s reliance on the 2003 Indira Jaising case to justify non-disclosure seems misplaced: not only was that case decided before India’s legislature passed the Right to Information Act in 2005 (under which the findings of a judicial committee would certainly be discoverable),Footnote 146 but Indira Jaising speaks only to interim findings (whereas the report that was announced on 6 May was, as the announcement strongly implied, a final report).Footnote 147
The CJI Scandal is by no means the first time the Indian judiciary has been caught unable or unwilling to impose rules upon itself. As Section 3 showed, the history of the appointments process has long been one of hope—hope that aspiring judges will not misbehave and hope that when they do, they will accept and be chastened by the few forms of indirect punishment that are provided for via custom and statute.Footnote 148 However, in the aftermath of the CJI Scandal, the Court’s unwillingness to allow any external oversight of its members as well as the justices’ seeming complaisance with the gaping holes in their internal disciplinary methods took on new salience. For instance, during a book launch two days after the Supreme Court protests—for a book discussing the “independence and accountability” of the judiciary, no lessFootnote 149 —speakers debated the extent to which either the judiciary or the executive and legislative branches needed to act as a check on one another’s authority. One speaker declared that “this jurisprudence of hope has no place in a democracy.”Footnote 150 She was, at the moment, speaking of the judiciary’s optimism that the executive would not overreach its authority, and the way that this expectation had been articulated through various prominent cases where the Supreme Court showed deference to the executive branch.Footnote 151 Nevertheless, both she and some of the other speakers went on to suggest that the current Court’s belief in “judicial exceptionalism” was reflected in the thorough absence of mechanisms for the justices or anyone else to step in when the Chief Justice was accused of inappropriate behaviour. Put differently, the “jurisprudence of hope” now referenced the Court’s aspirations for itself rather than for the other branches.
Despite this absence of a formal procedure that was relevant to the occasion, the Supreme Court might have voluntarily adopted procedural standards as a way of demonstrating that it was interested in meaningfully regulating itself. This would have signalled that the Court wished to reappropriate the aura of benevolent and erudite integrity it had once possessed. But it did none of this. The Court’s first response was that special Saturday hearing to which the complainant was not invited, and at which five of the most powerful men in India’s legal infrastructure (including the alleged wrongdoer) took turns in speculating as to her motives and character. Only after their response triggered outrage did the justices adopt the “in-house” procedure and hold hearings involving the complainant herself, but even then they by-passed plenty of opportunities for transparency and self-regulation. First, the Court initially declined to voluntarily follow the Vishaka Guidelines’ directive that workplace sexual-harassment committees should include at least one external member and be at least half female.Footnote 152 Likewise, it declined to permit the complainant an attorney or support person, did not allow her to call witnesses or access relevant evidence (like cellphone records), and—perhaps most egregiously—it declined to give her a written copy of the transcript from each day’s hearings while she was still participating in the process. It is hard to say that any one of these measures was legally required of the justices, but the fact that almost none of them was adopted by the Court (and not one was adopted voluntarily) gave the impression that the justices believed themselves to be engaging in a series of bothersome formalities.
Few things better conveyed the justices’ lack of enthusiasm for submitting to any authority besides their own than the erasure of Ranjan Gogoi’s name from the record of the Saturday hearing. The Indian news media repeatedly decried the Chief Justice’s willingness to “be a judge in his own cause” as well as the willingness of the other judges and lawyers who were present to implicitly approve of his choices.Footnote 153 Nevertheless, the Court appeared unconcerned. Even more troubling was the Court’s attempt to hide the fact that the Chief Justice had, quite literally, been “a judge in his own cause.” The order the Court issued that day was, by virtue of what it did not contain, an example of mythoi spoken in the assembly: it was an “unvarnished assertion” of how events should be understood by “men who believe their strength, position in society, and/or the justice of their cause entitles them to prevail.”Footnote 154 Likewise, other documents connected to the inquiry displayed a similar type of assertive opacity. For instance, an order authorizing investigation into whether the sexual-harassment complaint was part of a larger conspiracy to personally target Gogoi proceeded under sealed cover, so that neither the affidavits asserting the existence of a conspiracy nor the reasoning behind the order authorizing the investigation were made available to the public.Footnote 155 In other words, the erasure of Gogoi’s name from the record of the Saturday hearing simply crystallized, into two jarringly absent words, a more broadly applicable attitude among members of the Court regarding the relationship between judges and the people who are subject to their judgment.
That attitude has increasingly been defined by a judicial expectation of unstinting support that, when it is thwarted, turns into extreme defensiveness. The Supreme Court’s transformation into “a court of good governance” via PIL, Article 21 jurisprudence, and the norms and practices of accessibility described in Section 2 have allowed the Court to position itself as a last, best hope for citizens who receive little care from their elected representatives.Footnote 156 The price for that hope is collective agreement that “an independent judiciary is a sine qua non”Footnote 157 of Indian democracy and that this judicial independence is a thing of rare and fragile beauty. “To me,” a retired justice declared recently, “I always equate it to the chastity of a virgin.”Footnote 158 Following this script, Gogoi asserted in the early moments of the CJI Scandal that the allegations were part of a larger attempt to destabilize the judiciary and damage its independence.Footnote 159 “Reputation is the only thing we have,” he said during the Saturday hearing, adding that no judge would be willing to decide cases “if this is the kind of attack we get.”Footnote 160 Indeed, the very justification for the Saturday hearing—as articulated by the Supreme Court Registrar’s office—was not the alleged harassment of a Court employee but “A Matter of Great Public Importance Touching Upon the Independence of Judiciary.”Footnote 161
6. Gender and the judge
No conversation about the CJI Scandal is complete—although many have been completed—without an acknowledgement that conversations about gender rarely pierce the armour of India’s higher judiciary. I do not simply mean that allegations of gender bias or violence are infrequently articulated against Indian judges, although this seems unarguably true. Rather, except for a few stray moments in which especially bad acts or good decisions bring together “gender” and the “judge,” the deeply masculine ethos of Indian judging rarely surfaces in the reams of commentary that are regularly published on the Indian higher judiciary.
In part this is because there have been so few female Indian jurists to discuss. As of 23 March 2018, there were 73 (of 670) female judges in India’s high courts—a considerable increase from the 17 (of 514) who were serving in 2003.Footnote 162 On a global scale, this places India in a relatively poor (though, sadly, not unusual) position: India is comparable to countries like the UK, but considerably below the US and Canada, among others, and far below world leaders like Latvia and Slovenia, where over 50% of apex court judges are women.Footnote 163 Of the 248 justices who have served or are currently serving on the Supreme Court, only eight have been women. Moreover, the first of these female Supreme Court justices—Fathima Beevi—was only appointed in 1989, 42 years after independence and 39 years after India’s Constitution came into effect.Footnote 164 Many of the most influential studies of Indian Supreme Court justices were written before she was even appointed to the Court.Footnote 165
However, much of the commentary that has been written after Beevi’s elevation simply disregards gender even when the topic at hand is ostensibly the composition of the Court. For instance, a relatively recent study examines Supreme Court appointments along the axes of “Age of Appointment/Tenure,” “Regional Representation,” whether an appointee had been a “High Court Chief Justice,” and even the existence on the Court of “Minority Seats,” but nonetheless omitted any discussion of gender.Footnote 166 It mentioned Justice Beevi only to note that she had “the shortest high court tenure (six years) and the shortest natural Supreme Court tenure (two years),” was “one of the rare judges” to be appointed after retiring from a lower court, and that she was “a second Muslim judge” during the early days of the practice of having two Muslims sitting on the Court at any given time.Footnote 167 Even a critical review of this study failed to mention gender as a worthwhile axis of analysis, despite faulting the original study for failing to “develop an institutional sociology of the court or a realist understanding of its adjudication practices” and for not helping to “assess particular institutional devices—say, the manner of appointment—from a perspective of institutional governance and reform.”Footnote 168 Gender is simply not on the radar of most Indian Supreme Court watchers, save when it surfaces in judicial opinions or the occasional controversy, because of the strongly masculine ethos of India’s legal elite.
To be sure, a masculine ethos is not the same as a misogynistic one. But Indian society is often faulted for its deep misogyny, and rightfully so: in 2018, India ranked 129 out of 165 countries according to the United Nations’ Gender Inequality Index (in between Nicaragua and Namibia) and placed in the lowest of five possible groups in the Gender Development Index (alongside, for instance, South Sudan and Iran, but below Malawi and Bahrain).Footnote 169 Although the #MeTooIndia movement that emerged in 2018 started with a series of high-profile accusations and triumphant narratives of overdue justice, in the end, it nowhere approximated the breadth or longevity of its American counterpart.Footnote 170 Commentators have been divided as to whether this was caused by the pervasiveness of gender bias within Indian society or by a lack of synergy between social media and conventional media in the task of keeping the campaign alive, but there is little debate as to the way #MeToo claims were received in India.Footnote 171 Indeed, two of the male public figures who were accused of sexual misconduct during the campaign—Nana Patekar and M. J. Akbar—filed or threatened to file defamation claims against their accusers.Footnote 172
But beyond simply revealing misogynistic tendencies that extend outside India’s legal elite, the CJI Scandal underscored the extent to which the Supreme Court has been and continues to be defined by masculinity. The patrician Supreme Court of the early post-independence period, the heroic Supreme Court of the late twentieth and early twenty-first centuries, and the simultaneously defensive and assertive Supreme Court of recent years exemplify models of authority that are explicitly male. The mythic figure of the judge who saves, no less than the “unvarnished assertions” of mythos speech, is male. They are both so male, in fact, that commentary on the structure and functioning of the Supreme Court, although it is wide-ranging in its topical focus and often biting in its criticism, rarely identifies the Court’s identity and authority as being defined by gender at all.
This underlying characteristic of the Court—its masculine ethos, its gendered assertion of authority—remains constant even as the Court constructs a different, more forceful, and more unilateral relationship to power. Moreover, although the Court’s increasingly authoritarian, mythos-driven persona is shaped by the past prevalence of male bodies in judicial seats, it is not dependent on the gender identity of specific judges, as evidenced by the fact that two of the justices on the panel that ultimately absolved Gogoi, Indu Malhotra and Indira Banerjee, were women.Footnote 173 Instead, the CJI Scandal signals the ascension of a new attitude towards judging in India—one that is concerned less with “virtuous male power” and more with “unvarnished assertions” from those “who believe their strength, position in society, and/or the justice of their cause entitles them to prevail.”
In its very first public response to the complainant’s allegations—the announcement of the Saturday session—the Court reframed the circumstances surrounding the allegations into being “A Matter … Touching Upon the Independence of Judiciary”Footnote 174 ; the discourse of mythos made it possible to hold an inquiry about sexual misconduct and reframe it as an attack on the institution of the judiciary itself. In the “non-order” order issued after the Saturday session, Gogoi’s name was redacted from the record in an effort to baldly assert what the Court and the country knew to be false—namely that the Chief Justice had not sat as a judge in his own cause.Footnote 175 At each moment when the complainant made a request for something that would facilitate her participation and, perhaps, also contribute to the ostensible goal of holding the Chief Justice accountable to the very laws he was committed to uphold, the Court demurred. In no way would either the Court or the Chief Justice “‘submit’ to something ‘bigger’ and ‘higher’” than themselves because, as the Court has affirmed time and time again, it is, at least theoretically, the biggest and the highest legal authority in India.Footnote 176 Taken together, the CJI Scandal displayed, in a spectacularly overdetermined way, how judging in India is shot through with gendered overtones—and, indeed, how it remains that way despite the transition from mythic to mythos-driven approaches.
7. Conclusion
During conversations with me in the immediate aftermath of the CJI Scandal, Indian journalists who regularly report on law and the courts expressed a range of concerns about the higher judiciary. Sruthisagar Yamunan, who writes for Scroll.in, worried that the Supreme Court’s tendencies toward isolationism and defensiveness would make it too powerful for its own good.Footnote 177 Not only would an overly powerful Court weaken its own credibility as a bulwark against the authoritarianism or incompetence of the other branches; it would also exacerbate the legitimacy deficit that has long plagued the executive and legislature. Yamunan speculated that these branches would either permit the Court to continue taking on their “good governance” functions or they would seek backdoor channels (including blackmail) in order to reappropriate that power from the Court—or both. Atul Dev, who writes for Caravan, argued that the power balance between the executive and the Supreme Court had already begun to tilt towards the executive in around January 2017, towards the end of J. S. Khehar’s tenure as Chief Justice.Footnote 178 Justices—perhaps especially Chief Justices—are vulnerable and prone to Parliament-pleasing towards the ends of their careers, as they face the task of protecting their legacies and safeguarding their relatives’ prospects, since in many cases the descendants of Supreme Court justices (and Chief Justices) go on to become justices (and Chief Justices) themselves.Footnote 179
These concerns, which are growing among India’s legal elite, predate and exceed the CJI Scandal. Indeed, set against the backdrop of the Court’s recent history, nothing that happened in April and May of 2019 was particularly out of the ordinary. The Court’s lack of transparency and accountability, the expanding authority of the Chief Justice, and the nagging suspicions of unethical judicial behaviour that characterized the CJI Scandal have, along with the co-opting of PIL, the inaccessibility of the courts, and the over-expansion of Article 21 jurisprudence, defined the Court’s reputation in recent years writ large. Collectively, they signal a marked shift in the nature and purpose of judging in India, at least as these are imagined by judges themselves. Judging and judges have moved far from the Supreme Court’s early days of urbane (if conservative) erudition, or its post-Emergency stature as a heroic champion of the legislatively-forsaken masses. In this new era, judging is increasingly marked by a rhetoric of authority and entitlement; it is a process that demands consent and obedience rather than eliciting these things through admiration or awe. The CJI Scandal merely epitomizes this transformation, capturing in the space of a few days and fewer events a shift that has weighty consequences for the Court and country alike.
Acknowledgements
This article draws on ethnographic research conducted in Delhi in April-May 2019, pursuant to University of Alabama IRB protocol # 19-OR-090 and made possible by a Franklin Research Grant from the American Philosophical Society. My thanks to David Engel for inviting me to be a part of this project; to Elin Skaar and other participants in the 2020 Law & Society Association panel on “Gender Matters in the Judiciary” for their comments; and to Ben Schonthal for a variety of engagements on law and religion in Asia.
