The author in this article has discussed the concept of independence of the judiciary and separation of powers in the light of the post-retirement job accepted by Former CJI, Ranjan Gogoi.
Independence of the judiciary is a jewel of our rule of law. However, the constitutional courts can never be strong, fair, impartial and independent if the government is able to influence their judgments. The allure of post-retirement jobs for judges has plagued the constitutional courts for many years, irrespective of the party in power.
The political step taken by former CJI Ranjan Gogoi raises questions about the judiciary’s independence. He served as the 46th Chief Justice of India from October 3, 2018, to November 17, 2019.
On March 16, 2020, in an unprecedented move, former Chief Justice of India Ranjan Gogoi was nominated to the Rajya Sabha by President Ram Nath Kovind. He is the first former Chief Justice of India who is nominated to the Upper House of the Parliament. The former chief justice of India, Ranjan Gogoi, has taken oath as Rajya Sabha Member of Parliament on March 19, 2020, three days after he was nominated to Rajya Sabha by President Ram Nath Kovind.
ISSUES INVOLVED
The nomination of the former Chief Justice of India, Ranjan Gogoi to the Rajya Sabha has led to a controversy mainly involving two issues, namely;
(i) Denigration of the independence of the judiciary and its reputation and
(ii) Compromising the principle of separation of powers amongst the three organs of the State.
PLEA FILED IN THE SUPREME COURT
A plea challenging the nomination of former Chief Justice of India Ranjan Gogoi to the Rajya Sabha has been filed in the Supreme Court by academician Madhu Purnima Kishwar in the Supreme Court on March 18, 2020. A Writ Petition is filed under article 32 of the Constitution of India for issuance of a writ in the nature of mandamus, appropriate order or direction, for application of restrictions contained in Section 8 of the Lokpal Act on judges of Supreme Court of India and various high courts.
ASSOCIATED ISSUES WITH JUSTICE RANJAN GOGOI’S DECISION TO ACCEPT A LEGISLATIVE POSITION ON NOMINATION AFTER SERVING AS CJI
INDEPENDENCE OF JUDICIARY
Independence of the judiciary means that the judiciary is free from the control and influence of the executive and legislature. 'Independence of judiciary' is an essential part of the basic structure of the Constitution. In 1973, the Supreme Court in Kesavananda Bharati vs. State of Kerala [AIR 1973 SC 1461] held “independence of the judiciary” as the basic structure of the Constitution. Impartiality is the soul of the judiciary; independence is the life and blood of the judiciary[Madras bar Assocn. V. UOI, AIR 2010 SCW 4004]. Any act which creates an adverse impression on the independence of judiciary like the present one, wherein former CJI has been nominated to Rajya Sabha, amounts to an assault on the independence of the judiciary.
SEPARATION OF POWER
Our constitution is based on the separation of powers, in particular the separation between the judiciary, and the executive and the legislature. A system of checks and balances is followed in India and it is so essential for the proper functioning of three organs of the government. Mr. Gogoi’s appointment cannot be seen, as he has tried to project, as a way of ensuring cohesion between the judiciary and the legislature. However, any attempt to create ‘cohesion’ between the two wings would necessarily encroach on the judiciary’s role as a restraining force on the executive and legislature.
RETIRED JUDGES SHOULD NOT ACCEPT A PARLIAMENT SEAT IF IT IS SEEN AS A POLITICAL REWARD
The President’s nomination of former Chief Justice of India, Ranjan Gogoi, as a Rajya Sabha member so soon after his retirement, is seen as a classic example of the government rewarding a member of the judiciary for meeting its expectations during his tenure. It will be futile to argue that it is a well-deserved recognition for an eminent jurist. The gap of four months between his retirement and nomination and the fact that a number of decisions in his court were in seeming conformity with the present government’s expectations go against such a justification.
INSTITUTIONAL EROSION
Critics have termed his nomination for the Upper House as "institutional erosion". What has surprised many is that he's the first Supreme Court Judge to be appointed to the House in just a few months after retirement. Gogoi headed the SC bench that gave the controversial Ayodhya verdict. He also presided over benches that gave verdicts on the Rafale deal. Both these verdicts had gone in the favor of ruling party BJP. His judgments, from Rafale to Ayodhya, controversial anyway, will now appear to have been fuelled by suspect motives.
THIS ACTION SHALL LEAD PEOPLE TO QUESTION THE SUPREME COURT
Some of Gogoi’s judgments had come under legal scrutiny because they were controversial. Now the public can consider these judgments as biased because he got nominated to the Rajya Sabha following retirement. Therefore, the main problem with the nomination is that even if Justice Gogoi had been absolutely neutral and had acted in accordance with the law, his action may lead people to question the Supreme Court.
HYPOCRISY
A year back, Ranjan Gogoi had noted there was a view that post-retirement appointment “is a scar on the independence of the judiciary”. He remarked during the hearing of a case by a 5 - judge constitution bench on March 27, 2019, in which amendments in the Finance Act dealing with the functioning of tribunals were challenged. Why he accepted the nomination when his previous views on the issue are at odds with his nomination.
SUPREME PRECEDENCE
Former CJI Gogoi is definitely not the first retired judge who has been appointed to political office. This debate began way back in 1952 when Justice Fazl Ali was appointed as the governor of Odisha after he completed his tenure as a judge of the Supreme Court. Also, Justice Ranganath Mishra, who retired from the CJI’s position in 1992, became an MP in the upper house in 1998 on a Congress ticket but at that time the Congress was not in power. But, Congress’s decision to get him elected to the upper house was controversial because it was seen as payback for his having covered up the political culpability of Congress leaders in the 1984 massacre of the Sikhs.
However, in the case of Justice Mohammad Hidayatullah, the situation was very different. After several years after his retirement, Hidayatullah accepted the post of Vice - President of India. It is about time that we start expecting the judges of our constitutional courts to follow the example set by Hidayatullah.
RECOMMENDATIONS
The simple solution to resolve the impending crisis is to make a law for fixing ‘the cooling-off period’ before a retired judge could take up any responsibility in the government or any other constitutional posts. The cooling-off period will minimize the chances of judgments getting influenced by post-retirement allurements. Former Chief Justice of India R M Lodha, says that judges should not take post-retirement government posts for at least two years of demitting office.
Another recommendation is that the retirement age of judges should be raised to 70 years. They should be given their last salary as a pension and not given any post that does not involve judicial or quasi-judicial work for at least three years[B1] .
References:
BOOKS REFERRED
Kumar, N. (2010) Constitutional Law of India. New Delhi: Allahabad Law Agency.
Bakshi, S.K. (2012) Constitutional Law. New Delhi: Universal Law Publishing Co.
WEBSITES REFERRED
1. Bench, B. &. (2020, March 19). [BREAKING] Madhu Purnima Kishwar files PIL challenging nomination of Former CJI Ranjan Gogoi to Rajya Sabha [READ PETITION]. Retrieved March 28, 2020, from https://www.barandbench.com/news/litigation/breaking-madhu-purnima-kishwar-files-pil-challenging-nomination-of-former-cji-ranjan-gogoi-to-rajya-sabha-read-petition
2. Chandrachud, A. (2020, March 18). Time has come to ask: Should judges stop accepting post-retirement jobs offered by govt. Retrieved March 26, 2020, from https://indianexpress.com/article/opinion/columns/former-chief-justice-india-ranjan-gogoi-rajya-sabha-nomination-bjp-6319321/
3. Dalmia, V. (2020, March 24). Legal Matters: Judiciary needs a self-quarantine from political trappings. Retrieved March 26, 2020, from https://www.moneycontrol.com/news/trends/legal-trends/legal-matters-judiciary-needs-a-self-quarantine-from-political-trappings-5065521.html
4. Desk,I. T. W. (2020, March 19). Judgments don't win Rajya Sabha seats, not my aim to be minister: Ex-CJI Ranjan Gogoi. Retrieved March 29, 2020, from https://www.indiatoday.in/india/story/won-t-take-salary-not-my-aim-to-be-minister-ex-cji-ranjan-gogoi-1657605-2020-03-19
5. Dutta, P. K. (2020, March 18). Justice Ranjan Gogoi as Rajya Sabha MP: Law Commission report explains what is wrong here. Retrieved March 25, 2020, from https://www.indiatoday.in/news-analysis/story/justice-ranjan-gogoi-as-rajya-sabha-mp-law-commission-report-explains-what-is-wrong-here-1656834-2020-03-18
6. Former Chief Justice Gogoi's nomination to Rajya Sabha has cast doubt on the independence of India's judiciary. (2020, March 21). Retrieved March 29, 2020, from https://timesofindia.indiatimes.com/blogs/toi-edit-page/former-chief-justice-gogois-nomination-to-rajya-sabha-has-cast-doubt-on-the-independence-of-indias-judiciary/
7. Former CJI Ranjan Gogoi takes oath as Rajya Sabha member. (2020, March 19). Retrieved from https://www.businesstoday.in/current/economy-politics/former-cji-ranjan-gogoi-to-take-oath-as-rajya-sabha-member-today/story/398640.html
8. Raghvan, K. G. (2020, March 19). Nomination of former CJI Rajan Gogoi to Rajya Sabha: A tale of Probity and Prejudice. Retrieved March 29, 2020, from https://www.barandbench.com/columns/nomination-of-former-cji-rajan-gogoi-to-rajya-sabha-a-tale-of-probity-and-prejudice
Sengupta,A. (2019, June 13). After the judges retire: Time for a fresh look at sensitive judicial afternoons and evenings: The Times of India. Retrieved March 21, 2020, from https://vidhilegalpolicy.in/2019/05/08/after-the-judges-retire-time-for-a-fresh-look-at-sensitive-judicial-afternoons-and-evenings-the-times-of-india/
Submitted by
Ishita Arora,
University of Legal Studies, Punjab University.
(Images used for representative purpose only)