Strong institutions have fragile foundations in democracy. Toggle a brick or two and the scaffolding could fall on the watchmen, causing grievous injury to them and their Constitutional bastions. Last week, recently retired Chief Justice of India Ranjan Gogoi accepted a Rajya Sabha nomination by the BJP government—the first CJI to do so. The Opposition demonised him for demolishing the concept of an independent judiciary. Some of his old colleagues indicated that during his last days in office, Gogoi obliged the establishment instead of checking the misuse of power.
But he asserted that his parliamentary presence “will be an opportunity to project the views of the judiciary before the legislature and vice versa,” and added, “I have accepted the offer of the nomination to the Rajya Sabha because of strong conviction that the legislature and judiciary must, at some point of time, work together for nation-building.”
Gogoi’s induction has reignited the debate over the judiciary’s plummeting credibility. For the past few months, many judges and judgments have faced attacks and counter attacks from the legal community and political leaders. The acts and actions of both have cast a long shadow over the relationship between the judiciary and the executive. Legally speaking, the Indian judiciary has the complete independence to appoint and transfer judges. But for the past few years, it has been chastised for abjuring the use of a transparent mechanism in the transfer and choice of new judges.
While some senior judges have been ignored for elevation, others have been shifted from a bigger court to a smaller one because they were perceived as unacceptable to the ruling party. Judges have not shown their mettle when their recommendations for judicial appointments haven’t been either accepted or kept pending for months. At the moment, over 30 per cent of the vacancies in various high courts haven’t been filled despite the list pending with the government. The Supreme Court is blamed for not taking up important cases involving the violation of fundamental rights, alleged vindictive action against government critics and restoring faith in the judiciary’s independence.
Never before has justice come under such pugilistic public scrutiny. Legal luminaries feel that the Indian judiciary has woken up to new political and social realities and is interpreting the Constitution accordingly. Unfortunately, every Supreme Court verdict is seen as pronouncements influenced by ideology or other considerations. Gogoi duly declared, “Independence of judiciary means breaking the stranglehold of half-a-dozen people over it… They hold judges to ransom. If a case is not decided in a particular way advocated by them, they malign the judge in every way possible”. His ire is justified. For the first time, every verdict is now a political Mahabharata between liberals and nationalists.
The observations and conclusions of the apex court and other courts dealing with sensitive cases such as Triple Talaq, Ram Mandir, entry of women in places of worship, Shaheen Bagh protest, communal violence and inflammatory speeches by politicians are subjected to subjective interpretation. For too long has the Indian judiciary been dictated to and guided by liberal and secular opinion.
But ever since Modi and BJP acquired their massive mandate, the judiciary has dared to venture into hitherto taboo terrain. Moreover, the government has brought legislation which is unacceptable to its political adversaries who expect judges to knock down democratically passed laws. Gogoi, perhaps, followed the Constitution as he understood it. Judges are under public gaze not only for judgments but also for expressing open adulation of the prime minister. However, Gogoi’s is not the first case where justices are under flak for constitutional impropriety and quid pro quo rulings.
Supreme Court Justice Arun Mishra, while speaking at the International Judicial Conference 2020, felt that “India is a responsible and most friendly member of the international community under the stewardship of internationally acclaimed visionary Prime Minister Shri Narendra Modi. We thank the versatile genius who thinks globally and acts locally…” He was furiously fustigated by his own community for sycophancy. They forgot that many judges in the past have eulogised previous prime ministers. For example, Supreme Court Judge PN Bhagwati wrote a congratulatory letter to Indira Gandhi after her landslide win in 1980. It read: “You have become the symbol of the hopes and aspirations of the poor, hungry millions of India, who had so far nothing to hope for and nothing to live for.”
The reward of political sinecures for superannuating judges isn’t Modi’s brainchild. The trend began soon after Independence. Justice Sayed Fazal Ali was the first Supreme Court judge to become the governor of a state after retirement. Interestingly, he strongly opposed the incarceration of Communist leader AK Gopalan, who was detained under the Preventive Detention Act, 1950. Ali felt that it violated Article 21. But his dissent didn’t deter Jawaharlal Nehru who made him the governor of Odisha. Since then, numerous judges have actively flirted with politics. Justice Baharul Islam is the first Congress leader who became a high court judge and was elevated later to the Supreme Court.
The Congress set the precedent of choosing a former CJI for the Rajya Sabha with Ranganath Mishra, six years post retirement. It also appointed former CJI Hidayatullah as the Vice President. However, the lordships have been indulging in active politics. Ex-CJIs K Subba Rao, HR Khanna and VR Krishna Aiyer fought the presidential elections as Opposition candidates though none was accused of serving a ruling party’s interests.
It is evident that the chemistry between the Indian political establishment and judicial independence has met the new law of physics —every reaction has an equal action. As long as post-retirement allurements are not junked in the dustbin of propriety, the Indian judiciary wouldn’t be able to resist the power of the past. Since losing a sprawling bungalow and perks weigh heavily on the minds of our retiring milords, it would be better to let them retain their luxuries for at least two years after demitting office, while banning them from accepting a government-sponsored perch. If the judiciary becomes an instrument of cohesion, and not tension between the executive and the legislature, the death knell will toll across the excoriated wasteland of rectitude, not only for itself but for democracy too.