Controversy

CJI Ranjan Gogoi's nomination to the Rajya Sabha: More than a sinecure

Print edition : April 24, 2020

Former Chief Justice of India Ranjan Gogoi takes oath in the Rajya Sabha as a member on March 19. Photo: PTI

The nomination of former CJI Ranjan Gogoi to the Rajya Sabha within four months of his superannuation from the Supreme Court smacks of an unabashed bonhomie between the executive and the judiciary.

THE doctrine of separation of powers and judicial independence are two key facets of the basic structure of the Constitution which is beyond the scope of the amending power of Parliament, according to the Supreme Court’s judgment in the Kesavanand Bharati case (1973). By nominating the former Chief Justice of India (CJI), Ranjan Gogoi, to the Rajya Sabha with his consent on March 16, the Narendra Modi government has sought to convey that there is no restraint on it from playing havoc with the Constitution’s basic structure even if Parliament has no such power.

President Ram Nath Kovind nominated Justice Gogoi to the Rajya Sabha under Article 80(1)(a) of the Constitution, which says that the Council of States (Rajya Sabha) shall consist of 12 members to be nominated by the President in accordance with the provisions of clause (3). Clause (3) of Article 80 says that the members to be nominated shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely, literature, science, art and social service.

Gogoi’s nomination was to fill the vacancy that arose after senior advocate K.T.S. Tulsi’s six-year term ended on February 24. The tenure of seven other nominated members expires in 2022 and that of four others in 2024. They are the journalist Swapan Dasgupta, Bharatiya Janata Party (BJP) leader Subramanian Swamy, Olympic boxer Mary Kom, the educationist Dr Narendra Jadhav, the actor Suresh Gopi, the social activist Sambhajiraje Chhatrapati, the actor Roopa Ganguly, the social worker Ram Shakal, the classical dancer Sonal Mansingh, the columnist Rakesh Sinha and the sculptor Raghunath Mohapatra. Except Mary Kom and Narendra Jadhav, all are BJP members. Curiously, Justice Gogoi, in his interviews to the media, has not ruled out joining a political party or becoming a Minister later. A nominated member can join a political party within six months of taking oath and be designated as an unattached member of the Rajya Sabha.

Scathing criticism

Former judges of the Supreme Court, Justices Madan B. Lokur, Kurian Joseph, Markandey Katju and A.K. Patnaik, criticised Justice Gogoi for accepting the favour from the government soon after his retirement. Justice Lokur asked: “Has the last bastion fallen?” Justice Joseph expressed surprise that Justice Gogoi, who had exhibited such courage of conviction by participating in the press conference with three other judges (Justice Joseph, Justice Lokur and Justice J. Chelameswar) on January 12, 2018, against the then Chief Justice of India, Dipak Misra, could himself compromise the principles of independence of the judiciary (see “Crisis of confidence”, Frontline, February 16, 2018).

According to Justice Lokur, the reinstatement with full back wages by the Supreme Court of the woman complainant of sexual harassment against Justice Gogoi shows that there was some truth in her allegations (see “Justice on trial”, Frontline, March 24, 2019). She was dismissed before an in-house inquiry committee comprising three Supreme Court judges gave a clean chit to Justice Gogoi, without sharing the contents of their report with her. Justice Lokur also raised concerns over the November 2019 Supreme Court judgment on the Ayodhya dispute, whose authorship has not been disclosed, despite it being the unanimous judgment of the five judges on the bench. Justice Gogoi had presided over the bench.

Justice Lokur was of the view that Justice Gogoi’s tenure as the CJI strengthened the perception that the judiciary could not take on the government on crucial issues. Therefore, he felt, it was unwise for him to have accepted the offer. “By accepting an offer not commensurate with the dignity of the office held a few months earlier, the former CJI has led many to believe that he has been rewarded by the government, the biggest litigant, for doing their bidding when it mattered,” Justice Lokur wrote. He added that Justice Gogoi’s acceptance of the nomination and the criticism that it generated had considerably diminished the moral stature of the judiciary and thereby collaterally had an impact on its independence. “Public perception is important and it has been rendered totally irrelevant, thereby taking away one of the strengths of the judiciary,” he said. But such criticisms seem to have hardly hurt Justice Gogoi. In his interviews to television channels, Justice Gogoi dismissed Justice Katju as irrelevant, while calling Justices Lokur and Joseph as those with “failed ambitions”.

He relied on precedents to show that he was not the first former Supreme Court judge to become a Rajya Sabha member or accept a sinecure from the government. For instance, the former CJI Justice Ranganath Mishra was appointed chairman of the National Human Rights Commission after his retirement in 1992. He became a member of the Rajya Sabha in 1998 as a Congress member; he had earlier headed the commission of inquiry into the riots in the capital following Indira Gandhi’s assassination. The commission exonerated the Congress party in the 1984 carnage against Sikhs.

Justice Baharul Islam was another former Supreme Court judge whom Indira Gandhi rewarded, in 1983, with a Rajya Sabha membership, six months after his resignation from the court. Justice Islam had delivered a judgment favouring the then Bihar Chief Minister, Jagannath Mishra, who was facing trial for forgery and criminal misconduct. These two controversial precedents only confirm that Justice Gogoi, too, is being rewarded for favours he might have done as the CJI to the ruling dispensation at the Centre.

Justice Gogoi took oath as Member of Parliament on March 19 amidst shouts of “Shame” and “Deal” from Opposition MPs even as they staged a walkout. The Chairman of the Rajya Sabha, M. Venkaiah Naidu, however, ordered that no slogan-shouting would go on record.

Gogoi’s response

Allegations of quid pro quo angered Justice Gogoi, who claimed that they were scandalous and contemptuous insofar as they brought into disrepute other judges who sat on the bench, presided by him, and which delivered the judgments favouring the government. But the Supreme Court had held in 2017, in the Mid-Day contempt case, that allegations of quid pro quo against a former CJI while he was in office would not be construed as contemptuous merely because the alleged contemners lacked evidence of quid pro quo against other judges who sat on the bench with him. Justice Gogoi’s answer to his critics, therefore, lacks substance.

During the Constituent Assembly Debates, a proposal to restrict former judges from being nominated to the Rajya Sabha was negatived by Ambedkar, who believed such a situation would not arise. In 1958, the 14th Law Commission Report, authored by its then Chairman, M.C. Setalvad, concluded that it was undesirable that Supreme Court judges should look forward to other government employment after their retirement. Reason: A judge who might look forward to being employed by the government after his retirement does not bring to bear on his work that detachment of outlook which is expected of a judge in cases in which the government is a party. With the Central government becoming the major litigant before the Supreme Court today, the Law Commission’s 1958 recommendation is more relevant than ever before.

The Modi government, during its first term in office, rewarded the former CJI P. Sathasivam by appointing him as the Governor of Kerala soon after his retirement from the Supreme Court. Sathasivam’s acceptance of the offer suggested that he was being rewarded for a judgment he had delivered favouring the current Union Home Minister and former BJP president Amit Shah. The judgment quashed a first information report against Shah in a fake encounter case in April 2013. Justice Sathasivam, however, denied the insinuation saying at that time no one would have known that Shah would become the BJP president. But his defence failed to satisfy his critics, who held him responsible for tarnishing the image of the judiciary as a whole.

Justice Gogoi’s nomination to the Rajya Sabha, therefore, strengthens the perception that the prestige of the Supreme Court, for its institutional independence and integrity, is on decline.

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