Having accepted the nomination to the Rajya Sabha, former Chief Justice of India Ranjan Gogoi has been subject to massive criticism and condemnation. Although this is not the only instance where a Supreme Court Judge has made an entry to the legislature, but the short span (four months after Justice Gogoi’s retirement) within which he has been appointed is highly questionable. In the past also, Judges including Ranganath Mishra, Baharul Islam and others have been either nominated or elected to the Parliament. But, the nomination was after a considerable gap from their retirement.
So, why am I stressing on the time-gap, and not outrightly condemning such post-retirement activities of former Judges? The rationale behind this is striking a proper balance between Article 50 and Article 80 of the Constitution.
Article 50 provides that Judiciary must be segregated from the Executive to ensure independence of the judicial system. Article 80, on the other hand, gives power to the President to nominate 12 members to the Council of States (Rajya Sabha) having special knowledge or practical experience in the field of art, science, social service etc. Conventionally, the President has been nominating at least one eminent member from the field of law.
It is only in line with this convention that Justice Gogoi has been nominated in place of Mr KTS Tulsi, whose term expired after having served for a period of six years. It is also pertinent to mention here that there is no law that prohibits a Judge, whether of the Supreme Court or any High Court to be nominated or elected, as the case may be, to the Parliament. However, if such nomination is done just after the Judge has demitted office, or within its very short period, it raises a serious question on the independence of the Judiciary.
The independence of the Judiciary is a part of the basic structure of our Constitution, and is a very hallowed principle that ensures the Judiciary to function independently and impartially. The Supreme Court had struck down the formation of National Judicial Appointments Commission (NJAC) solely on the basis that various provisions of the Act undermined the independence of Judiciary.
Nomination to the Parliament, an offer of governorship, ambassadorship or chairmanship of various tribunals immediately or very soon after their retirement, may influence the Judge to give his judgments in a particular direction. This is because talks or negotiations regarding these nominations commence very early on. The Judge is very likely to give judgements in favour of the Executive, with little regard to the legal principles.
Therefore, only if the ‘cooling- off’ period is maintained – by not nominating or selecting them soon after their term gets over – can the directive principle of separation of the Judiciary be adhered to. This will not only repose to some extent the respect and faith of the public in the Judiciary, but also, the country will greatly benefit from the abundant knowledge and vast experience of the Judges.