Former CJI Ranjan Gogoi would have done well to pay heed to what he himself said during a hearing a year ago.
The President nominating—on the advice of the Centre—former Chief Justice of India (CJI) Ranjan Gogoi to the Rajya Sabha (RS) is a sad day for India’s judiciary. Such post-retirement placement—Gogoi retired in November 2019—casts a shadow on the major judgments given by the Supreme Court (SC) during Gogoi’s tenure, even if they were, in fact, jurisprudentially sound. Many of the judgments, like those on Rafale and Ayodhya, it so happens, went in favour of the government. Indeed, it is precisely to avoid such situations that, as a general rule, post-retirement appointments are frowned upon in such posts, among regulators, etc. If, however, such appointments are allowed, the argument goes, the about-to-retire person may just be induced to give the ‘right’ judgment/decision. Interestingly, while the Trai Act prohibits government jobs for any regulator, in 2014, an ex-Trai chief was appointed principal secretary, and the government then changed the Trai Act through an ordinance. More recently, the current Trai chief was re-hired after his term came to an end.
Ex-CJI Gogoi’s nomination to the RS, it has to be said, is not the first such occurrence—so, this government can’t be accused of being the only one to commit such improprieties. The PV Narasimha Rao government appointed former CJI Ranganath Misra as the chairperson of the National Human Rights Commission in October 1993, a year after his retirement, and Misra was elected to the Rajya Sabha on a Congress ticket in 1998. As a sitting judge of the SC, Misra had been appointed to the single-member commission of inquiry into the 1984 anti-Sikh riots by the Rajiv Gandhi government in April 1985, and had submitted a report exonerating the Congress party and its leaders in February 1987. Former CJI P Sathasivam was named Governor of Kerala by the Modi government in 2014, within months of retirement. Then, there is the case of Baharul Islam, who, as an SC judge in December 1982, had acquitted Jagannath Mishra, the then Congress chief minister of Bihar, in the Patna Urban Cooperative Bank case—Mishra’s government, in complete breach of propriety, had ordered the withdrawal of vigilance cases against Mishra. Just weeks after, in January 1983, Islam resigned from the SC, and was elected to the RS on a Congress ticket in 1984.
It is, of course, unrealistic to expect members of judiciary not to hold political opinions. Indeed, Justice VR Krishna Iyer, who delivered several landmark judgments, was a minister in the EMS Namboodiripad government in Kerala before joining the SC; Justice Iyer’s landmark judgments include Maneka Gandhi (1978), which allowed for a wide range of human rights to become part of the ‘right to life and personal liberty’, and Ratlam Municipality (1980) that became a precursor to the ‘polluter pays’ principle. Some countries like the US constitutionally provide for politicised judiciaries with partisan representation. And, Indira Gandhi even infamously called for a “dedicated judiciary”. But, given the faith reposed in the appellate judiciary’s insularity from politics, a Gogoi nomination shouldn’t be repeated by any government. Ideally, the former judges themselves should decline such offers. Former CJI Gogoi, and others, would do well to keep in mind the words of a Constitution bench of the SC that was hearing petitions challenging the laws governing quasi-judicial tribunals last year. When senior advocate Arvind Datar spoke of the need to appoint ex-judges to head these specialised tribunals, Justice Gogoi, who was part of the bench, said, “There is a view point that post-retirement appointment is itself a scar on judicial independence of the judiciary”. When Datar said it was only a view point and not the law, Gogoi countered that it “is a valid and strong point.” At the Ramnath Goenka lecture, Gogoi spoke of the need for the judiciary to remain “uncontaminated” and “independent”. Words full of sound and fury, it now appears, but signifying nothing.