A year back, Ranjan Gogoi, who was the Chief Justice of India then, had noted there was a view that post-retirement appointment “is a scar on the independence of the judiciary”.
Editorial: Mr R Gogoi, MP
His remarks came during the hearing of a case by a five-judge constitution bench on March 27, 2019, in which amendments to the Finance Act dealing with functioning of tribunals in the country were challenged.
When senior advocate Aravind Datar brought up the need to appoint ex-judges to head specialised tribunals, justice Gogoi said, “You are suggesting a clause in the statute that the person who is the chairperson should not take up any other assignment… Something akin to the lokpal in the states, where after ceasing to hold that office, you are not eligible to hold another public office for 5 years…There is a view that post-retirement the appointment is itself a scar on the independence of the judiciary. How do you handle that?” justice Gogoi asked.
When Datar replied that it was only a viewpoint and the law did not prohibit such appointments, Gogoi remarked that it was a “very strong viewpoint.”
The former CJI’s nomination to the Rajya Sabha has sparked a debate on the independence of the judiciary and whether judges should accept positions offered by the government after retirement. Although justice Gogoi has remained tight-lipped on why he accepted the nomination, his previous views on the issue are at odds with his nomination.
Delivering the Third Ramnath Goenka Memorial Lecture on July 12, 2018, as CJI designate, Gogoi stressed on the importance of the judiciary remaining “uncontaminated” and “independent”.
Referring to an article (selected from The Economist), “How Democracy Dies” published in The Indian Express on June 19, 2018, Gogoi said: “It said, at one place, that, ‘…independent judges and noisy journalists are democracy’s first line of defence…Reports of the death of democracy are greatly exaggerated. But, the least bad system of government ever devised is in trouble. It needs defenders.’ I agree but will only suggest a slight modification in today’s context – not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges.”
“I would like to believe, this is why, Ramnath ji had also said that “fierce independence” is indeed the bedrock of justice. But I would like to add that “independence” must always be responsible with due regard to established Constitutional values. This institution is the last bastion of hope and the one that the citizenry believes firmly, will give justice to them, come what may.”
“It fills me with immense pride to see that as an institution, the judiciary has been endowed with great societal trust. This very fact gives it its credibility and this very credibility gives it its legitimacy. It is a very enviable spot for an institution. I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated. And, independent. And, fierce. And, at all times. A chain is only as strong as its weakest link. So is an institution,” he added.
In October 2018, on the farewell organised by the Supreme Court Bar Association for then outgoing CJI Dipak Misra, Attorney General KK Venugopal lamented on inadequate remuneration for judges and cited that as a reason for judges taking up post-retirement jobs.
“In spite of the odds, we have committed judges. We are committed to the cause and we shall continue to be committed regardless of the inadequacies of remuneration and in spite of the possibilities of abuse of our names. We will not be alarmed with that. It comes with the system,” Gogoi had said in response.
Before coming to power in 2014, the BJP too had advocated against post-retirement jobs for judges. However, barely months after winning the Lok Sabha with clear majority, former CJI P Sathasivam was appointed Governor of Kerala.
“Pre-retirement judgements are influenced by a desire for a post-retirement job,” former Finance Minister Arun Jaitley had said when in Opposition in 2012.
Incidentally, in a blog post on April 21, 2019, Jaitley had in a blog post come out in support of justice Gogoi in the wake of sexual harassment allegations made against the former CJI.
“In terms of personal decency, values, ethics and integrity, the present Chief Justice of India is extremely well regarded. Even when critics disagree with his judicial view, his value system has never been questioned. Lending shoulder to completely unverified allegations coming from a disgruntled person with a not-so-glorious track record is aiding the process of destabilisation of the institution of the Chief Justice of India,” Jaitley had written.
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