Former CJI Gogoi is now a Rajya Sabha member: What is the big deal?
- Shruti Sundar Ray
- Mar 24, 2020
- 7 min read
Updated: Jul 21, 2020
The appointment of former Chief Justice of India Ranjan Gogoi to the Parliament has come under the scanner due to its possible implications for the independence of the judiciary
Former Chief Justice of India Ranjan Gogoi took oath as member of the Rajya Sabha on March 19, 2020. His nomination by the President Ram Nath Kovind and subsequent acceptance has been mired in controversy.
Justice Gogoi, who had retired exactly four months ago on November 19, 2018 took oath at the Rajya Sabha amid unprecedented sloganeering. Opposition leaders, including from the Congress and CPI (M), chanted “shame on you” on the floor of the house and proceeded to walk out.
How was Gogoi nominated?
Justice Gogoi’s nomination to the Rajya Sabha was announced by a notification issued by the Ministry of Home Affairs on March 16, 2020. The President exercised his powers under Article 80 of the Constitution of India to nominate Justice Gogoi to the Rajya Sabha. Article 80 empowers the President to nominate twelve members to the Rajya Sabha or the Council of States, consisting of persons having special knowledge or practical experience in matters including literature, science, art and social service.
Justice Gogoi’s nomination will fill the vacancy caused by the retirement of another nominated member, eminent jurist K T S Tulsi.
What is Gogoi famous for?
During his close-to-13-month-long tenure, Justice Gogoi delivered various significant judgements, wherein his stance did not go against that of the ruling Bharatiya Janata Party. His legacy would perhaps be the verdict in the decades-old Ayodhya Ram Janmabhoomi-Babri Masjid land dispute. In the long-awaited final verdict, a five-judge bench of the Supreme Court unanimously ordered that the disputed land be handed over to a trust, to be created by the Government of India, for the construction of a temple for the Hindu deity Ram.
During his tenure in December 2018, a unanimous judgement of three judges, authored by Justice Gogoi, found no irregularities or corruption in the government’s controversial deal to buy 36 Rafale jets for the Indian Air Force. In November 2019, another three-judge bench, which included Justice Gogoi, upheld the previous judgment and dismissed all petitions seeking review.
Justice Gogoi has publicly backed and judicially pushed for the implementation of the National Register of Citizens (NRC) in Assam. A bench headed by him, in a 3:2 verdict, also referred the question of women’s entry into the Sabarimala temple and other questions of ‘essential religious practices’ to a larger bench.
Besides the judgments passed during his tenure as Chief Justice, Justice Gogoi will also be remembered for the sexual harassment allegations levelled against him by a former Supreme Court employee. Although an in-house committee found “no substance” in the allegations against Justice Gogoi, what is noteworthy is the ad-hoc manner in which the charges were handled by the Court, including an extraordinary hearing called by the Chief Justice declaring that there was a conspiracy against him.
Why has Gogoi’s nomination been criticized?
Justice Gogoi’s post-retirement nomination to the Rajya Sabha has cast aspersions on the constitutional values of independence of the judiciary and separation of powers. The fear is that a sitting judge may be induced towards making a judgment in favour of the government in lieu of a cushy assignment after retirement.
E A S Sarma, a retired bureaucrat and social activist, wrote a letter to the President expressing his concerns over the move. “In my view, offering the higher members of the judiciary nominated positions such as the Governor of a State or a Membership in the Rajya Sabha undoubtedly sets an unhealthy precedent, as it tends to weaken the institution of the judiciary," wrote Sarma, as reported by the Business Standard.
Activist Madhu Kishwar has filed a public interest litigation (PIL) in the Supreme Court challenging the nomination. Bar and Bench quotes the PIL as saying, “his [Gogoi’s] nomination as a Rajya Sabha member by the President of India gives it the colour of a political appointment and therefore casts a shadow of doubt on the credibility of the judgments delivered under his headship of the Supreme Court.”
The nomination has further been criticized as a quid pro quo arrangement for judgments during Justice Gogoi’s tenure, which have been perceived as favourable to the ruling government.
Retired judges like Justices Madan Lokur, A K Patnaik and Kurian Joseph have also spoken out against the propriety of the nomination and the potential damage such a move may cause to the image of the judiciary.
Congress leader and former Law Minister Kapil Sibal also took to Twitter to question the integrity of both Justice Gogoi and the judiciary.
The argument by Opposition leaders is that the ‘delaying tactics’ and ‘sealed cover decisions’, employed in petitions challenging the Rafale deal or the abrogation of Article 370 in Kashmir, were helpful to the ruling government and Justice Gogoi’s present Rajya Sabha nomination is the government’s way of returning the favour.
“We should be deeply grateful to Justice Ranjan Gogoi. His conduct has disabused us of any illusions we might harbour about the legitimacy of the Indian Supreme Court,” wrote Pratap Bhanu Mehta in an opinion piece for The Indian Express.
Why did Gogoi accept the nomination?
Explaining his acceptance of the Rajya Sabha nomination, Justice Gogoi is reported to have said, “I accepted it since I am confident that the legislature and the judiciary must at some point of time work together for nation-building. My presence in the Parliament would be an opportunity to underline the views of the judiciary before the lawmakers and vice-versa.”
In a press interaction after he took oath, Justice Gogoi responded to criticisms levelled at his nomination. “Those who are criticising acceptance of nomination as quid pro quo must grant a better sense of proportion to a former CJI [Chief Justice of India]. If a former CJI wants quid pro quo, then he could seek bigger, lucrative posts with bigger emoluments and facilities and not a nomination to RS [Rajya Sabha], where the pecuniary benefits are the same as that of a retired judge,” he said.
Justice Gogoi’s nomination was also defended by Union Minister for Law Justice Ravi Shankar Prasad who stated that, “If a former CJI [Chief Justice of India] is coming as a fully nominated member to Rajya Sabha without aligning to any party, his great wisdom and experience will add to the standard of debates in the Upper House.”
Have such post-retirement appointments been made before?
In the case of some constitutional functionaries such as the CAG (Comptroller and Auditor General of India) and the members of the UPSC (Union Public Service Commission) and SPSCs (State Public Service Commissions) are barred from appointment to other government positions after retirement. But there is no such restriction on further appointment of judges, including the Chief Justice of India.
Several eminent judges have accepted nominations to other positions, in the past. Former Chief Justices of India S Rajendra Babu, K G Balakrishnan, H L Dattu have all been appointed as Chairpersons of the National Human Rights Commission, an assignment for which only retired Supreme Court Chief Justices were eligible until the recent 2019 amendment. Top positions at many other tribunals and commissions are also open only to retired judges.
Former Justice Hidayatullah was appointed as the Vice President of India unopposed in 1979, nine years after his retirement. While post-retirement appointments of judges need not be controversial per se, appointments have attracted scrutiny when they have a political hue. Two notable examples from the past are available—Justice Baharul Islam and Justice Ranganath Mishra. Former Supreme Court judge Justice Islam resigned as a Congress Rajya Sabha member in 1970 upon his elevation to the High Court bench, and went on to become a Supreme Court judge, as well. Soon after his retirement, he was elected to the Rajya Sabha on a Congress ticket again. Former Chief Justice of India Ranganath Mishra’s election to the Rajya Sabha eight years after retirement was also mired in allegations of quid pro quo. During his tenure, Mishra had, in a one-man committee report, absolved Congress leaders charged in relation to the 1984 Anti-Sikh riots.
While there are similarities between these instances and the present nomination of Justice Gogoi, some differences are noteworthy. Drawing a distinction in an opinion piece for The Indian Express, Congress leader Randeep Singh Surjewala highlights the need for a cooling-off period between retirement as a judge and the subsequent nomination. Another point of difference is that Justice Gogoi is the first retired Chief Justice of India to be nominated, not elected, to the Rajya Sabha.
This is not the only recent example of a lucrative post-retirement appointment of judges. Under the National Democratic Alliance government, former Chief Justice of India P Sathasivam was appointed as Governor of Kerala in September 2014, four months after his retirement in April 2014.
Does Gogoi’s nomination have an impact on the Independence of Judiciary?
Statements by leaders of the ruling Bharatiya Janata Party have reflected their own apprehensions about the impact of post-retirement appointments on the independence of judiciary. Union Minister Nitin Gadkari is reported to have said in 2012 that there should be a gap of two years after retirement before appointment of judges to tribunals because “otherwise, the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise.”
The sentiment is echoed by Justice Gogoi himself, as well. While hearing petitions challenging amendments to laws governing tribunals, a five-judge bench headed by the Chief Justice acknowledged that there is “valid and strong” viewpoint that “post-retirement appointment is itself a scar on judicial independence of the judiciary”.
The lure of post-retirement appointments is a greater challenge in the higher judiciary since the government is the major litigant in Supreme Court cases. It is this very reason that the Law Commission cited while making a strong recommendation for banning the post-retirement government employment of Supreme Court judges.
The problem lies in the fact that although some judges are well placed after retirement, not all are. This allows for governments to hang a metaphorical carrot before judges willing them to deliver favourable judgements. Pratap Bhanu Mehta highlighted this issue in an opinion piece, “A paper by Shubhankar Dam, Madhav Aney and Giovanni Ko, and earlier work by Shylashri Shankar, collected systematic data to show how judges proactively become pro-executive as they near retirement.”
There can be no estimation of whether the lure of post-retirement postings forms a credible inducement that can influence the decision-making of judges. But critics believe that such appointments have an impact on the public perception of the judiciary.
“There is neither a constitutional bar nor is it against any law to appoint a former Chief Justice as the Governor of a State or a Member of Parliament. But what seriously undermines the image of the judiciary is the increasing perception of a culture of reward and punishment,” writes Arvind Datar for Bar and Bench.
Datar’s rendition of the classic legal maxim of natural justice is telling—“the judiciary should not only be independent but should manifestly and undoubtedly be seen to be independent”.
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