Amid the country’s preoccupation with combating Covid-19, the President’s act of nominating ex-Chief Justice of India Ranjan Gogoi to the Rajya Sabha has predictably raised a stink about the independence of the judiciary. Critics of Prime Minister Narendra Modi openly ask whether there is indeed a ‘quid pro quo’ involved in the nature and quality of verdicts that favour the government and post-retirement roles for judges. On March 19, when Justice Gogoi took oath as a Rajya Sabha member, there was a unprecedented scene of members from the opposition chanting slogans like “shame on you” with some even trooping to the well of the House. But past precedents, citing such appointments done during the Congress era, have come in handy for Modi’s establishment.
True, Justice Gogoi is the first former CJI to be nominated to the Rajya Sabha, that too three months after his retirement. However, he is not the first to join the House of Elders. Former CJI Ranganath Mishra was also a Rajya Sabha member and an elected one, on a Congress ticket, though it was seven years after he retired. The maximum strength of Rajya Sabha is 250 members, out of which 12 are nominated by the President. Ironically, Gogoi filled a vacancy originating due to the retirement of one of the Congress-led UPA government-nominated members, senior advocate K T S Tulsi, who has represented Sonia Gandhi’s son-in-law Robert Vadra in many legal cases. The Congress has since then again sent 72-year-old Tulsi back to the Rajya Sabha for another term as an elected member from Chhattisgarh.
Before his retirement on November 17 last year, Justice Gogoi gave judgment in several landmark cases, namely the Ayodhya dispute land case, review judgment in the Rafale case, contempt case against Congress leader Rahul Gandhi and the Sabarimala review verdict. According to Justice Gogoi, “I was looking forward to retirement, but when the call came, I could not have shoved it and said that I want to take my holidays and live life the way I want. There are compulsions and commitments and there are principals and norms that we go by.” Justice Gogoi appeared unfazed as he dismissed the reactions from his ex-colleague like Justice (retired) Madan B Lokur who asked whether the “last bastion” of independence, impartiality and integrity has fallen. Justice Gogoi’s another colleague, Justice Kurian Joseph, had declared that his acceptance of the Upper House nomination has “certainly shaken” the confidence of the common man and “compromised” the independence and impartiality of the judiciary. Retired SC judge A K Patnaik said a retired CJI has no role in Rajya Sabha and neither the President should appoint a former CJI nor should he accept it.
“A judge should retire gracefully.” But Justice Gogoi did seem to echo another view point, which may not be different from the one held by Modi and other members of his dispensation. Judicial independence was under threat (not so much from his appointment but) because of the stranglehold of a “lobby” of people who maligned a judge if a judgment did not go as per their wishes. Unless this stranglehold is broken, judiciary cannot be independent. They hold judges to ransom. Subsequently, in a TV interview, Justice Gogoi held that certain sections of people were unhappy with him as a Supreme Court judge or as a CJI because he headed a SC bench that gave a clean chit to the Modi government over the allegations of mishandling of the Rafale deal, primarily levelled by the Congress party. It also dismissed review petitions seeking an investigation into the purchase of the 36 fighter jets from France’s Dassault Aviation.
Justice Gogoi’s defence is that the Ayodhya verdict was an unanimous one of a five-member bench. The Rafale judgment was unanimous by three judges as they did not find any evidence of any further inquiry and closed the case. As for the historic judgment in the Ayodhya land dispute case, he held that “given the magnitude of the documents, it took some time. We resolved it. It was a unanimous judgment.”
But the key question remains: Why would Justice Gogoi and Modi be ready to court a controversy if they were not thinking of a greater role for the retired CJI? The Prime Minister would not have been so keen to have Gogoi in Parliament if he did not envision a bigger purpose for him.
Gogoi belongs to the dominant Ahom community of the state, which goes to the polls next year. The whispers in the corridors of Parliament include even speculations over Gogoi being considered for a role like the Union Law Minister in the future. Does Modi plan big ticket changes in the Constitution?
Justice Gogoi has observed that his presence in Parliament would be an opportunity to underline the views of the judiciary before the law-makers and vice-versa and both sides must work together at “some point of time for nation-building.” In Gogoi’s defence, the government has so far held that he has been nominated from the “eminent persons” category in which persons like Dr M S Swaminathan, Dr Raja Ramanna, Prof M G K Menon and a whole range of eminent people entered the Upper House.
There have been journalists too — Kuldip Nayar, H K Dua, and Shobhana Bhartia.Perhaps, Justice Gogoi’s nomination would have invited lesser censure if there had been a “cooling off” period between his retirement and appointment. But as Union Law Minister Ravi Shankar Prasad pointed out, such a time bar should involve all sinecure jobs.That judges should not take up any appointment post retirement is certainly a question to be decided in its entirety. This should include the tribunals, many commissions and many arbitrations, says Prasad. Nobody will disagree.
Shekhar Iyer
The writer is a senior journalist. This column will appear every fortnight