Former Chief Justice Ranjan Gogoi was nominated to the Rajya Sabha by the President on 16 March. This controversial nomination attracted debates from both sides. While certain people, including former Justice AP Shah and Madan Lokur, have regarded this nomination as a “quid pro quo“. Others have argued that such appointments have taken place in the past and fulfil the constitutional mandate under Article 80.
I will be taking the former position. Although the constitution mandates such a nomination, more profound issues are surrounding this particular nomination. These issues become important keeping in mind the principle of “Separation of Powers”.
Before we move to discuss some of the factors that make Gogoi’s nomination particularly problematic, it is imperative to highlight how the said principle becomes relevant generally in such a scenario. In simple terms, the concept of Separation of Powers is that the three wings; executive, legislature and judiciary work in their own separate spheres.
However, in India, this separation is not rigid in the sense that the functions of these three may overlap in some situations. Although not rigid, this separation ensures a sense of “independence” that all three organs possess. With this independence also comes the “system of checks and balances”. Thus, every time one organ tries to overstep its authority, we have the other two curtailing the same. This ensures that a balance is maintained and power is not concentrated in one wing.
Now, imagine a situation where one organ starts to influence and incentivise another to work in its favour. Won’t that compromise this balance, thus, accumulating power in one hand? In this context, post-retirement nominations of judges to the Parliament have the potential to act as an incentive for judges to favour the ruling party while deciding cases. Let us now see how Mr Gogoi’s appointment could serve as a scar on judicial independence.
Mr Gogoi retired from the office of Chief Justice in November 2019 and was nominated to the Rajya Sabha in March 2020, just 4 months after his retirement. In this sense, there does not seem to be any “cooling off” period. It was almost like a nomination was awaiting him as soon as he retired.
Justice Gogoi’s tenure was a controversial one. He presided over several cases of national and political significance. Some of these include the Ram Janmabhoomi dispute, Rafale case, etc. The interesting thing about all these is that they seemed to have gone in favour of the ruling party. The Supreme Court heard the Ram Mandir matter 5 days in a row. It almost seemed as if it was intended for this matter to be decided within Gogoi’s tenure. In the Rafale case too the ruling party was given a clean chit.
Another controversial aspect of his tenure was the sexual harassment allegations against him by an employee of the Supreme Court. He not only abused his power as “master of the roster” by constituting a bench for a case against himself; principles of natural justice were equally given a toss when he presided over his own case. In light of such events there was no action from the Parliament — no impeachment proceedings started against him. Moreover, no member of the ruling party took a firm stand against how proceedings were taken place in court.
In February, a bench headed by J Muralidhar held the Delhi police responsible for not filing FIRs against BJP leaders involved in the recent Delhi riots. The very next day, the Centre issued a notice for his transfer to the Punjab and Haryana High Court. This is a prominent instance of the consequences that take place if a judge rules against the executive. It is instances like these which further points towards who calls the shots.
Having said the above, the larger point is how post-retirement benefits offered to judges can influence judicial decision making. People regard the judiciary their “saviour” and they place immense faith in this institution. In this context, the position of the Chief Justice becomes even more sensitive and the actions of a judge are bound to set precedents; whether good or bad. It is the responsibility of people running this institution to maintain this faith. Thus, the acceptance of such post-retirement positions sends out the wrong message to the public at large.
I would like to end by quoting Pratap Bhanu Mehta: “The Law will not protect you because it is compromised, the Court will not be a countervailing power to the executive because it is supine, and Judges will not empower you because they are diminished men.“