Former CJI Ranjan Gogoi has been appointed to Rajya Sabha as a member of eminence by President Ram Nath Kovind, four months after his retirement. Justice Gogoi presided over cases like Ayodhya, triple talaq and Rafale defence deal. Gogoi and three other senior most Supreme Court judges had held a press conference in January 2018 against then-CJI Dipak Misra, saying that democracy was “in danger”.
ThePrint asks: ‘Rebel’ judge to Rajya Sabha: Ex-CJI Ranjan Gogoi hurting SC image or being harshly judged?
Gogoi fails to meet the criteria for appointment to Rajya Sabha, conduct as CJI far from exemplary
Founder and director, Vidhi Centre for Legal Policy
Post-retirement appointment of judges by the government is not new. My own research has shown that for Supreme Court retirees between 2002 to 2012, over 70 percent of retired Supreme Court judges got appointments by the government.
However, we must keep in mind that Ranjan Gogoi’s tenure as the Chief Justice of India was perhaps one of the most fractious tenures that one has seen. This is primarily because of two incidents—first, the sexual harassment allegations against him during which his conduct was far from exemplary, particularly for being on the bench in his own cause. Second, his supervision of the NRC in Assam where he was more executive-minded than the executive. Very few Chief Justices have done as much to belittle the cause of judicial independence and fairness as Gogoi.
With this appointment, no pretence remains either on the side of the government or the judiciary that judicial independence needs to be seen to be protected. Any government would know that the appointment of this nature would damage the perception of judicial independence. Any judge would know that his or her acceptance of such a post would corrode the moral fabric of the judiciary even further. But it’s clear—homilies aside, neither really care about an independent judiciary.
The technical criteria for nomination of MPs to the Rajya Sabha by the President is special knowledge or practical experience in literature, art, science or social service. Are there some qualities of Gogoi’s that we are unaware of that makes him eligible?
Congress has appointed many judges to Rajya Sabha. Why raise questions on Modi govt’s motives now?
Justice Gogoi has been nominated by the President. The condition for any nomination should be that the person is eminently qualified and suitable.
There cannot be any doubt that a CJI is an eminently qualified person, who is a legal expert and meets the relevant criteria. There are no doubts about Justice Gogoi’s qualifications.
Some questions are being raised on whether a former judge of the Supreme Court should be nominated for Rajya Sabha. Judiciary works on precedence and we have the example of Justice Baharul Islam who was a Rajya Sabha member from the Congress. He later got appointed to the High Court, became a judge of the Supreme Court and gave orders in cases involving Congress CMs. After his retirement from the Supreme Court, he was again appointed to the Rajya Sabha by the Congress.
CJI Ranganath Misra was appointed to the Rajya Sabha by the Congress after retirement. When no objection was raised then against the Congress, then questions shouldn’t be raised now unfairly either on the Modi government’s ulterior motive.
That being said, if a uniform policy is made that no judge after retirement should take government jobs or nomination, that would be good for the judiciary. But in absence of any such rule or law, we cannot selectively target judges.
Gogoi has destroyed the perception of independence of judiciary and damaged Supreme Court’s reputation
Affiliated Faculty of the Center on the Legal Profession, Harvard Law School
For an institution like the Supreme Court, what matters the most is its independence as well as the perception of independence. This requires a high standard of conduct and a certain level of restraint from judges in order to maintain public confidence in the judiciary.
By taking a Rajya Sabha nomination within a short span after his retirement, Justice Gogoi has destroyed the perception of independence of judiciary. Gogoi was the Chief Justice of India and presided over a number of matters where the government had a strong stake. In those cases, we witnessed judicial evasiveness and delay, which directly or indirectly benefited the government.
He is the same person who had hidden behind the notion of ‘independence of judiciary’, when accused of sexual harassment, and used his powers to tyrannize a proper probe into the matter. At that time, the top officers of the government – the Attorney General and the Solicitor General – had defended Gogoi. His acceptance to a Rajya Sabha seat definitely raises a doubt in the public mind about his conduct as a judge. We have had judges like former Chief Justice T.S. Thakur, who rejected the offer of Rajya Sabha membership made.
The former and current judges must speak in unequivocal terms against this unethical conduct of Justice Gogoi, which has damaged the reputation of the Supreme Court.
Retired judges should not be given any position, or refuse if any offer is made. It is more about propriety than legality
Constitutional Law Expert
Former CJI Ranjan Gogoi’s appointment comes only four months after his retirement, which is too early. Ideally, there should have been a cooling-off period of at least two-three years. As the chief justice of the Supreme Court, Gogoi had dealt with cases of clear interest to the government. He delayed hearings on Kashmir lockdown, did not give enough importance to the habeas-corpus petition and also delivered the judgment in Ayodhya land dispute case. On NRC, some of the observations about the number of people in detention have shocked many civil society activists as the Supreme Court is constitutionally mandated to protect people’s liberties.
The government could have chosen anyone. Several senior retired CJIs are available who had given judgments that were consistent with the ideological position of the current government.
Gogoi’s appointment cannot be compared with Justice Hidayatullah’s case because the latter had retired in 1970 when Congress was in power and was elected Vice President by both the Houses of Parliament in 1979 under Janta party government. Similarly, former CJI Ranganath Mishra also joined politics after many years of retirement.
Ideally, the judges should not be given any position after retirement but they must get the last salary as pension. The judiciary decides many political questions and its judgments help one or the other political dispensations. So even if an offer is made, the onus lies on the judge to refuse. It is more a question of propriety than legality. By refusing nomination Justice Gagoi would have enhanced the stature of our judges.
Ranjan Gogoi has been nominated for his commitment to ideas of due process and judicial integrity
Justice Gogoi has been nominated for his commitment to ideas of due process, judicial independence, integrity and separation of powers. He has been a tireless practitioner of these ideals right from handling of the Rafale controversy, finalising Assam NRC, impartial handling of sexual harassment complaint and legal imprimatur to Babri Masjid dispute.
Additionally, he was an astute master of the roster who refused to be waylaid and didn’t let precious judicial time be wasted on non-issues like electoral bonds or habeas corpus petitions in Kashmir. The BJP’s understanding of these ideas is best exemplified through the tenure of Justice Gogoi. An ‘eminent personality’ who can carry the baton of “sabka sath, sabka vikas and sabka vishwas”.
May his Rajya Sabha stint be as stellar and unblemished as his innings as the CJI. His
nomination is a judicial high noon moment filled with the hope that in times to come, the courts and the executive can speak in one voice. This nomination might pave the path for such institutional camaraderie and solidarity in future and what more can one ask for in the present times.
By Unnati Sharma, journalist at ThePrint