By Sreelekshmi Ben
Rajya Sabha, one of the essential components of Parliament of India, is vested with the legislative and overall responsibility to pass the legislations in India and to keep a check on the working of the Executive respectively. Under Article 80 of the Constitution of India, the President has the power to appoint 12 members to the upper house of the parliament. The 12 nominated persons are chosen by the President from amongst persons having special knowledge or practical experience in Literature, Science, Art and Social Service. The objective behind this provision was to provide the deserved recognition to the personages who have contributed significantly to the above mentioned fields and thereby use their adroitness for the development of the nation. From a plain reading of Article 80 of the Indian Constitution , it is strenuous to assume that the Constitution- makers had in mind a retired CJI while framing this provision.
But in the past few years, it is noticeable that it is not the excellence of the candidates in their respective fields that earn them the seat but their political patronage. It is not just the case of Rajya Sabha but in other appointments as well , where the merit and not the political background has to be taken into considerations, are highly vitiated. It is the affinity of the candidates to political parties that provide them the opportunity to hold positions that have to be “highly impartial”. This matter has stirred a controversy recently as Ranjan Gogoi, former Chief Justice of India was nominated by the President Ram Nath Kovind to the upper house of the Parliament. This has put the independence of the judiciary and the age-old concept of separation of powers that existed in India into question.
PRECEDENTS
This is not the first instance where a former judicial officer has been appointed to an executive post. In 1998, former Chief Justice of India Ranganath Mishra was appointed to the Rajya Sabha after his retirement in 1991. However he was elected on a party ticket as he had joined Congress Party after his retirement. But the interesting fact was that while holding the position of judge, he had given a clean chit to Congress for its part in Anti- Sikh riots, 1984. In another instance, M.C Chagla , after retirement from Bombay High Court was appointed as Ambassador and High Commissioner from India to the United States and United Kingdom respectively by Jawaharlal Nehru and subsequently had also entered the government as a minister. This was heavily criticized by the eminent lawyer and jurist, M.C Setalvad. In another interesting case , Justice Baharul Islam who was elected to Rajya Sabha as a member of Indian National Congress resigned from the post and later became the Chief Justice of Gauhati High Court and later a Supreme Court judge. He had absolved the then Chief Minister of Bihar Jagannatha Mishra in an urban cooperative bank scandal who unsurprisingly hails from the same party. He subsequently resigned from the Supreme Court only to become a Rajya Sabha member again.
In the last decade, former Chief Justice of India P Sathasivam was appointed as the Governor of Kerala by the Modi Government. This also had triggered a controversy as this appointment to an important constitutional post was viewed as a favor to Justice Sathasivam for granting relief to Amith Shah , the then Home Minister of Gujarat and the present Home Minister of India, in a custodial death case. The precedents of similar appointments can in no way justify the present appointment; as said by Justice Lokur in a recent article, several wrongs of the past do not make this decision right.
From a plain scrutiny of the aforementioned instances, there is no doubt that the independence of the judiciary is seen to be tampered. It is true that by these appointments ,the brilliance of these legal minds can make significant contributions to the legal arena even after their retirement, but there is no denial of the fact that such appointments have constructed sufficient amounts of doubt regarding the independence of the judiciary in the eyes of people.
POST- RETIREMENT OFFERS
The question whether Justice Gogoi’s credentials falls under the ambit of Article 80 of the Indian Constitution is highly debatable. It is a common trend in India to appoint former judges to the post of chairmen or as members of commissions, tribunals, Lokpals and Lokayuktas, Press councils, governmental bodies etc. These appoints which are made by the government has obscured the clear demarcation that existed between judiciary and executive. It corrodes the moral fabric of the judiciary. In 1960, the then attorney general M.C Setalvad had heavily criticized these appointments and went on to say that judges of the Supreme Court angled for these positions while in service.
Post retirement jobs are often a reward to the judges in exchange of the favors they have done while in office. This clearly gives out the message that the judges have to pronounce favorable decisions that are in accordance with the aspirations of the government, hidden under the notion of a seemingly fair judgment in order to ensure themselves a comfortable plum post after they demit the office. It is pertinent for such people to keep in mind that the judges are constitutional servants and not government servants.
It is not wrong to say that such instrumental appointments are made with an ulterior motive to support the government’s stance and to counter the stands of the opposition in the matters of law.
NEXUS BETWEEN PRE-RETIREMENT JUDGEMENTS AND THE APPOINTMENT
On 2018, along with J. Chelameswar, Madan B. Lokur and Kurian Joseph, Ranjan Gogoi had joined an unprecedented press conference which expressed concerns over the encroachment of the executive on the judicial domain and the government's interference on the working of the courts along with questioning the allocations of cases to the different benches of the courts by Justice Dipak Mishra. Ranjan Gogoi himself has once stated that such post-retirement posts are a scar on the independence of the judiciary.
In 2019 during Ramath Goenka Memorial Lecture, Justice Gogoi had stressed on the factor that judiciary should exist uncontaminated and independent. However after his nomination to the Rajya Sabha, Gogoi has said that the judiciary and the legislative at some point of time must work together for nation-building and that his presence in Parliament will be an opportunity to project the views of the judiciary in front of the legislative. It is clear that the appointment designates him as nothing but an authoritative spokesman of the government covered under the pretence of an independent voice in the parliament. This nomination was tagged as quid pro quo by the opposition and eminent lawyers.
His previous statements are in stark contrast to the reality as his appointment and tenure in office is speculated to be contaminated. This speculation has evolved from the numerous judgments passed by Justice Gogoi while in office. These judgments blatantly or tacitly endorse the agendas of the government and are indeed worthy of a reward appointment. The fact that Gogoi headed benches in important cases that the same government which has nominated him had important political stakes has ignited sparks of doubt in the minds of people.
Justice Gogoi was part of the bench that directed the implementation of the National Register of Citizens in Assam. The NRC update in Assam sprang from a political demand to drive undocumented immigrants out of the state but the overt reality has something else to tell. A total of 1.9 million applicants were left out rendering them potentially stateless and it is a fact of concern that the majority of them were Muslims. This also paved way for the enactment of The Citizenship (Amendment) Act, 2019 which eases the process of acquiring citizenship to non- Muslim minorities from three Muslim-majority nations, and propose a nationwide NRC. This resonates with the hindutva principle and unites the anti religious-minorities sentiments of certain sections of the society.
Another landmark judgment by a bench led by Justice Gogoi was the Ram Janmabhoomi-Babri Masjid case. The decision was to hand over the disputed land to a trust, to be created by the Government to build a temple and give an alternate 5 acres of land Sunni Waqf Board for the purpose of building a mosque in another place. This decision also has echoed to a large extent the government’s ideologies. A bench led by Gogoi had also managed to give a clean chit to the Narendra Modi government over allegations of irregularities in India’s purchase of 36 Rafale jets from France’s Dassault Aviation. The bench also initiated criminal contempt proceedings against Rahul Gandhi for his remarks aimed at Narendra Modi.
In addition to this, his judgments helped the government through the Central Bureau of Investigation (CBI) crisis and traces of support can also be seen in the Kashmir Habeas Corpus Petitions that were filed following the scrapping of Article 370. The latter order drew considerable flak from several quarters over alleged delay as well as the court’s refusal to order the production of the people in question, which was seen as a defeat of the very purpose of habeas corpus petitions. Unnecessary delays and complete ignorance were observed in most urgent cases including that of habeas corpus petitions in cases of Kashmiri leaders like Farooq and Omar Abdullah, Mehbooba Mufti or M.Y. Tarigami. Gautam Bhatia, a well known Lawyer and legal commentator termed this as a “bizarre perversion of the right to habeas corpus” and said “while the court refused to pronounce on the validity of the detentions themselves, it sought to fashion ad hoc compromises in individual cases without discharging its constitutional obligation”
However in cases, where the Government or its sympathizers sought the remedies, the Court made prompt and diligent decisions. Not to forget that acting against their whims and fancies, will only result in attracting transfer or other troubles as seen in the case of Justice Muralidhar. In the Delhi violence case , which emerged from the anti-CAA protests, Justice Muralidhar slammed police for their inefficiency and directed the police to evacuate victims and take the injured to hospital. He was immediately transferred from Delhi High Court to the Punjab and Haryana High Court.
Even if we move on the assumption that these judgments were given independently and not politically tainted also, the fact that the appointment of a judge , who gave favourable decisions to the government would act as a serious blow to the impartial image of the judiciary, remains unchanged. According to Justice Lokur public perception is an important aspect and the acceptance by the former CJI has rendered it totally irrelevant, thereby taking away one of the strengths of the judiciary. He also noted that Justice Gogoi’s acceptance of the nomination and the criticism that it generated had considerably diminished the moral stature of the judiciary and thereby collaterally had an impact on its independence.
Justice Gogoi also made headlines when he was accused of sexual harassment by a former Supreme Court employee but he denied the allegations and termed it as a conspiratorial attempt to hamper the independence of judiciary. He was cleared by the three-member Supreme Court panel that was looking into the matter but triggered a deafening opprobrium from the legal fraternity as the case was heard violating the principles of natural justice and against all norms of judicial propriety. The probability that the government also would have lent him a helping hand in the sexual harassment case cannot be pushed away.
INDEPENDENCE OF JUDICIARY A MYTH NOW?
Appointments of judges to Rajya Sabha will certainly invite questions about the constitutional separation of powers between the executive and the judiciary. If this persists , the time when public will lose its confidence on the judicial system of our nation is not far away . The judiciary’s reputation must be uncompromised, independent and impartial. Independence and impartiality of Judiciary is a sine qua non for a vibrant democracy system and is a prime necessary to ensure the protection of the rights of the people, for the upliftment and wellbeing of the vulnerable sections of the society and at the same time to provide fair justice to the people. Such important constitutional posts must not be corrupted and has to be assumed by officers with utmost integrity. Justice Kurian Joseph who expressed dissatisfaction over the acceptance of the nomination stated that “The moment the confidence of the people is shaken, the moment there is a perception that a section among judges are otherwise biased or looking forward, the tectonic alignment of the nation built on solid foundations is shaken”
The culture of post-retirement judicial appointments raises a grave danger of judicialising politics or politicizing the judiciary in unholy public matrimony. Judiciary is expected to stand against the misuse or abuse of power by executive and if the same judiciary starts acting under the influence of executive pressures, that may lead to complete chaos. Over the past few years, the lamentation that the judiciary has been acting as an extension of the executive by echoing the sentiments of the government has augmented. Arun Jaitley had on earlier occasions voiced that “Pre-retirement judgments are influenced by a desire for a post-retirement job. This clamour for post retirement jobs is adversely affecting the impartiality of the judiciary of the country and time has come that it should come to an end”.
REFORMS
There is no doubt that the appointment of judges to Rajya Sabha cannot be rendered invalid as it does not violate any law .Neither the Constitution nor any law enacted in India prevents a former judge from assuming the post of Governor of a State or a Member of Parliament and hence a sweeping reform is essential to maintain the sanity of the judicial system. This is a matter of grave importance and has to be addressed to discharge the judiciary from the vicious clutches of other external forces and internal presses. In case appointments of judges to the upper house has to be made so as to facilitate the development of our nation , it should be done in the most neutral and transparent manner.
A judge should not be offered any position post his retirement and in case he is offered he is morally bound to decline that offer so as to uphold the judicial decorum. Supreme Court is undoubtedly the last bastion of hope for the helpless people and is bound to guard the Constitution and hence such fallacies in the judicial system would render the whole concept of sound democracy invalid. Post-retirement jobs are bound to impair the independence of judiciary and hence a law barring judges from holding any political posts after retirement should be enacted. Either by a constitutional amendment or a parliamentary enactment restrainment to post-retirement appointments of Supreme Court judges has to be imposed. Such appointments not only call into doubt the image of judiciary but also commitment of political parties to the constitutional values . At least a cool off period has to be prescribed for the judges before taking up a political post after retirement. This will ensure that the judgments delivered by the judge are not influenced and is free from external interferences. It will minimalise the chances of judgments getting influenced by post-retirement allurements. It is important to keep the judiciary completely out of any temptation and contract with the executive or the legislative side.
CONCLUSION
Supreme Court is the highest constitutional and judicial court of India endowed with the duty to safeguard the fundamental rights of citizens. Destruction of the independence of judiciary is something that a democratic country cannot afford. Thereby it is necessary to ensure that the executive machinery does not intrude into the domain of the judicial system. The three organs have to work together for the development of the nation but independently. The judicial proceedings must not be disturbed by any interference by the legislature or the executive so that it may take a judgment that is reasonably fair. It is high time that the courts prioritize cases in which the rights of the people are in question rather than the politicized cases which are being heard as urgent matters these days. A constitutional prohibition must be imposed on a person who is holding or has held the office of Judge of the Supreme Court against his employment in any executive office, so that he is not enticed by any of temptation of greater emoluments, or greater prestige which would in any way affect his independence as a Judge.