There was substantial hue and cry over the Hon’ble Mr.Justice Ranjan Gogoi, the former Chief Justice of India, accepting a nomination by the President of India to the Rajya Sabha. Politicians, prominent members of civil society and a section of the media decried Jutice Gogoi’s decision to go to the Rajya Sabha as unacceptable and unprecedented. Are such observations correct, on both scores?
It must be primarily understood and acknowledged that Justice Gogoi had an unblemished and exemplary stint during his close to two decades stint as a Judge, having been first appointed as a judge of the Gauhati High Court on 28th February, 2001. Thereafter, he moved to the Punjab and Haryana High Court in 2010 and was appointed the Chief Justice of that court in 2011. He was elevated to the Supreme Court of India in 2011 when Honb’le Mr.Justice S.H.Kapadia was the CJI and Smt. Prathiba Patil was the President of India. Right through his tenure as a judge he was known for delivering very insightful and impactful judgements.
Justice Ranjan Gogoi hails from a very illustrious lineage in Assam; his mother’s ancestry could be traced to the royal family of Tai-Ahom Chao Pha Purandar Singha. His father, Kesab Chandra Gogoi was a member of the Indian National Congress and served as the Chief Minister of Assam for two months in 1982. Though Justice Gogoi cracked the UPSC examinations at the behest of his father, he chose to become an advocate and enrolled in the year 1978.
Justice Gogoi became the 46th Chief Justice of India on 3 October 2018. He came into the limelight prior to that on January 18, 2018, when Justice Gogoi, along with Justice Madan B Lokur (since retired and currently serves as the Chief Justice of the Supreme Court of Fiji) Justice Kurien Joseph (since retired) and Justice Jasti Chalemeswar(since retired), in an unprecedented move, conducted a public press conference expressing their dissent over the administration of the Supreme Court by the then Chief Justice, Hon’ble Mr.Justice Dipak Mishra. One of the primary concerns of the four judges was the allocation of work to the judges by the Chief Justice. This press conference got the media and the general public quite excited. A lot of views for and against the press conference were expressed. The CJI was nothing more than primus inter pares (first among equals) argued some, while the others countered that the CJI was a shoulder above his companion judges having certain administrative prerogatives, if not judicial. Anyway, this matter was put to rest by a Bench comprising Justice A.K.Sikri and Justice Ashok Bhushan in their separate but concurring judgements, while dismissing a Public Interest Litigation petition filed by former union law minister, Shanthi Bhushan. The CJI continues to be the Master of the Roster, who will allocate work among the other judges of the Supreme Court.
Several landmark cases were heard and decided during Justice Gogoi’s tenure as the CJI. The most significant ones being The Citizenship (Registration of Citizens and Issue of National Identity Card) Rules, 2001 case and the Ayodhya dispute. In the former case, the UPA government wanted to update the Old National Register (NRC) 1951 and consequently asked the residents of Assam to apply. However, this exercise was stopped due to law and order issues. Another attempt was made by the Government by issuing a gazette notification in 2013. The exercise did not move anywhere and consequently, a Bench comprising Justice Gogoi and Justice Rohinton Nariman directed the Centre vide a judgement dated 17 December 2014 to complete the finalization of the final updated NRC for the entire state of Assam by January 1, 2016. That the very same political entities that commenced this exercise later opposed it tooth and nail is a mystery shrouded in political motives.
The other case, one that was closely followed by millions of people and one that would have very significant political and social impact, was the Ayodhya dispute that had been pending for several years. A five judges Bench led by Justice Gogoi made a decisive move of referring such a high profile dispute to the process of arbitration and appointed a panel headed by former Supreme Court Judge, Hon’ble Mr.Justice F.M.Kallifulla, spiritual guru Sri Sri Ravishankar and noted jurist and Senior Advocate Sriram Panchu, a very renowned name in legal circles, particularly known for his passion for the process of arbitration and conciliation. It is widely acknowledged that the process of arbitration led to a “sort of settlement” between parties. The Bench led by Justice Gogoi, comprising Justices S.A. Bobde (the present CJI), Ashok Bhushan, D.Y.Chandrachud and S.Abdul Nazeer delivered the historic verdict in this long pending and contentious case, thus bringing down the curtains on one of the most followed cases in the world.
The fact that any judge in a Bench is at liberty to express a dissenting or concurring view needs no explanation. The entry of women into the Sabarimala temple case is an example, where four judges concurred that such a restriction was unconstitutional, while the lone lady judge, Justice Indu Malhotra authored a dissenting judgement stating, inter alia, that courts should refrain from interfering with religious beliefs and practices. Therefore, to say that Justice Gogoi could have independently engineered any verdict in favour of the ruling establishment does not hold much weight.
Another important point to be noted is that the projection that Justice Gogoi’s appointment to the Rajya Sabha is an isolated incident is not correct. Several judges in the past have been given very prestigious assignments post retirement. Though the details of such appointments are available on public domain, this article refrains from naming them personally for the sake of maintaining a certain decorum and in order to avoid possible public criticism of some of them who have since deceased.
Further, there are several tribunals and forums that can be statutorily headed only by a judge who has retired from the Supreme court or the High Court as the case may be. In fact, some of these forums have to be headed only by a retired District Judge. And in some instances, the Chairperson has to be a retired CJI, as in the case of the Chairperson of the National Human Rights Commission. Such appointments are usually made by Committees that comprise the Prime Minister, Home Minister and the Leader of the Opposition, or in some cases the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha are involved. Suffice to say that such post retirement appointment of judges are not made by the judiciary. The Executive and Legislature are largely involved with Presidential assent being mandatory in most cases.
Therefore, it is not correct to say that a certain judge acted in a manner during his or her tenure as a judge keeping in mind a post-retirement assignment. There is also no express bar against such an appointment. In the case of Justice Gogoi, he is a jurist with extraordinary experience in dealing with a wide array of cases, the knowledge that he has accumulated will only stand to benefit the Rajya Sabha and the deliberations that will be carried on within its sacred confines. It is far more acceptable to send such an accomplished jurist to the Rajya Sabha than sending film stars and sportspersons who, after being appointed, register attendance under 20% and participate in no debates.
Attributing political motives to high profile appointments is nothing new. It has been there for a long time and will continue to occupy space in all media. After all, there has to be something to write or debate about. The services of any person who has attained a certain degree of accomplishment by virtue of his or her career, be it in any field, should be considered for being employed for the benefit of this country, regardless of any bias attributed to that person as the reasons could be multifold. Personal integrity should be the primary and most significant touchstone for such appointments. The fact that a few may disagree or be inconvenienced should never come in the way of making such appointments.
Quoting Justice Gogoi himself, “Those who are criticising acceptance of nomination as quid pro quo must grant a better sense of proportion to a former CJI. If a former CJI wants quid pro quo, then he could seek bigger, lucrative posts with bigger emoluments and facilities and not a nomination to RS, where the pecuniary benefits are the same as that of a retired judge.”
It is also noteworthy that Justice Gogoi has already declared his intention to donate his salary that he is entitled to receive for refurbishing libraries in small town law colleges, if the rules permit it.
Be that as it may. Justice Gogoi got a first-hand experience of what it is to be a legislator in this country, as the opposition parties including the Congress and the Communist party, but excluding the Samajwadi party, shouted slogans and walked out when he took oath as a member of the Rajya Sabha.
Let there be a legislation against former judges holding posts after retirement. Let there at least be some regulations governing this, as we know there is a recommendation made in the unimplemented 14th report of the Law Commission of India against former judges accepting government posts or nominations. It is clear that no government has acted on this recommendation made in 1958. In fact, the Law Commission itself is headed by a retired Supreme Court Judge.
For now, there are arguments supporting either side and these can be put to rest only by constructive and conclusive legislation and regulation.
About the author
C G Kumar is a practicing lawyer from 1996 dealing with civil, criminal, corporate, banking and IPR laws. He currently practices in High Court and District Court and has offices in Chennai and Coimbatore. Follow him on twitter @worthword. For queries you can get in touch with him through [email protected]
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