The nomination of former Chief Justice Ranjan Gogoi to the Rajya Sabha by President Ram Nath Kovind was bound to be debated. But this is not the first or the last time that any chief justice or judge who has retired from the high courts or the Supreme Court has been appointed to a public office after retirement. These appointments began soon after India’s Independence and continue to this day.
Justice Gogoi has unfortunately been on the receiving end of much criticism. And more often than not, it appears this criticism is being directed towards the Bharatiya Janata Party rather than leading to a healthy discussion on the issue of judges accepting post-retirement jobs.
This debate began way back in 1952 when Justice Fazl Ali was appointed the governor of Odisha after he completed his tenure as a judge of the Supreme Court. Interestingly, Justice Fazl Ali had retired on 30 June, but was appointed as the governor of Odisha on 7 June 1952!
The two appointments that also stand out are those of Justice Baharul Islam and Justice Ranganath Misra.
Justice Baharul Islam was an advocate elected to the Rajya Sabha as a member of the Congress in 1962. He resigned as a member of the Rajya Sabha in 1972 only to be appointed as a Judge of the Gauhati High Court. Justice Islam was subsequently made a judge of the Supreme Court. Not only was such an appointment unprecedented owing to his political inclinations, Justice Islam, during his tenure in the Supreme Court, also delivered a judgment absolving then Bihar chief minister from the Congress in the urban cooperative bank case. What followed was even more abrasive — Justice Islam resigned from the Supreme Court to contest elections as a candidate of the Congress. As Justice Islam was elected to the Rajya Sabha yet again, it almost seemed like life had come a full circle for him.
The second interesting case was that of retired Chief Justice Ranganath Misra. Chief Justice Ranganath Misra had given a clean chit to the Congress for its role in the 1984 anti-Sikh riots. Not surprisingly, Justice Ranganath Misra was also elected as a member of the Congress to the Rajya Sabha.
Barring a few examples of impropriety, India has also seen some excellent contributions made by judges post their retirement in public offices. The first example is that of Justice M.C. Chagla who served as the first chief justice of the Bombay High Court. Justice Chagla, immediately after his retirement, served as the Indian ambassador to the United States, following which he served as the Indian high commissioner to the United Kingdom and on his return from his diplomatic assignments, became a member of the Union cabinet in 1963. However, Justice M.C. Chagla’s independent mind once again stood out when he took a stand against the Emergency imposed by then Prime Minister Indira Gandhi.
There is a long list of judges who have chosen to contest Lok Sabha elections post their retirement. Although, former Chief Justice Gogoi’s case is different.
On 16 March, Gogoi was nominated to the Rajya Sabha by the President in exercise of the powers conferred under Article 80 of the Constitution. This provision enables the President to nominate 12 members to the Rajya Sabha who are eminent personalities and have excelled in their respective fields. It is only in light of such a provision that Justice Gogoi was been nominated by President Kovind.
This raises the question as to whether a personality such as Justice Gogoi, who enrolled in the bar in 1978, was appointed as a Judge of the Gauhati High Court in 2001 and who subsequently served the country as the Chief Justice, can be considered an eminent personality or not? After looking at Justice Gogoi’s credentials, this answer seems to be self-explanatory.
And yet, an argument of bias has been raised by a certain section of society. Some of the arguments being put forward are that Chief Justice Gogoi delivered judgments on matters of public importance such as the Babri Masjid-Ram Janambhoomi verdict. However on the same line of reasoning, one must consider that Chief Justice Gogoi was also a part of an unprecedented press conference addressed by four sitting judges of the Supreme Court in 2018. The same members of the judiciary who are now questioning his nomination had then observed that Justice Gogoi may have been superseded by another judge because he had questioned the Narendra Modi government and functioning of the judiciary. By that logic, Justice Gogoi ought not to have been elevated as the Chief Justice of India. Unfortunately, the section criticising the nomination of Justice Gogoi has shown that they forget crucial details to further their arguments. In this political crossfire, it is unfortunate that a judge of the Supreme Court is being criticised to suit political objectives.
Coming to the vexed question of post-retirement benefits for members of the judiciary, it must be noted that such benefits come in different shapes and forms. They can include appointments to members of different tribunals, lucrative arbitration assignments or even serving as a director of a public sector undertaking, to name some. There is a fallacy in the argument that only when a judge of the Supreme Court is nominated as a member of the Rajya Sabha, is the independence of the judiciary compromised.
If the post-retirement benefits for members of the judiciary has to be debated, then a consensus needs to be arrived at involving the interests of members of the legal fraternity, political leaders and the view of the public at large. Together, we must come to such a consensus through healthy and productive debate. In the process, we must refrain from singling out a particular nomination
The author is a managing partner at Parinam law Associate and Vice President, Mumbai BJP and spokesperson, BJP. Views are personal.
This article has been updated to reflect a correction. Justice Chagla had resigned from Indira Gandhi’s cabinet before he took a stand against the Emergency. The error is regretted.