Why do you think Justice Ranjan Gogoi, who retired less than four months ago, can be nominated to Rajya Sabha?
First of all, he has been nominated from the eminent persons category in which category historically persons like M S Swaminathan, Raja Ramanna, MGK Menon… a whole range of eminent people entered the Upper House. There has been a tradition. There have been great journalists too — Kuldip Nayar, H K Dua, Shobhana Bhartia etc. Let me draw from the history. Jawaharlal Nehru appointed Justice Fazal Ali as the Governor of Odisha in 1952-53, one of the most iconic figures of India Justice Mohammadali Carim Chagla, who was chief justice of Bombay High Court for nearly 11 years and still remains as the one of the finest judges of India of intellect and courage, was offered ambassadorship to the US. He became a distinguished ambassador in the US, high commissioner in the UK and then chose to become the HRD and External Affairs Minister. Come to the next issue. (Koka) Subba Rao was a chief justice of Supreme Court. He contested for the post of president against Zakir Hussain. Was the independence of judiciary compromised because of these? Nothing.
The real issue came in 1970s when Indira Gandhi was in power. She had a good majority. The first was supercession of senior judges. Justice (K S) Hegde (A N) Grover and Justice (Manilal) Shelat… A N Ray was the Chief Justice and what was his first job after becoming the CJI? To constitute all the judges bench of Supreme Court to undo the Kesavananda Bharati Case.This was compromising the independence of judiciary.
Then came Emergency, judges were transferred. H R Khanna, that brave judge who upheld freedom during Emergency, was denied the Chief Justice position for two months. Who came? M H Baig, who was later given a Padma Vibhushan by Rajiv Gandhi.
Now comes the next issue. Baharul Islam was a Congress member of Rajya Sabha. He went to contest Assembly elections from Assam but was defeated. In 1972, he was made a High Court judge, retired in 1980. When Indira Gandhi returned to power in 1980, he was rescued from retirement and made a Supreme Court judge where he remained for two-and-a-half-years and made a questionable judgment in the case of Jagannath Mishra’s cooperative scam, resigned and then came into Rajya Sabha. What do you call it? Then came Ranganath Mishra. As a sitting judge, he headed a commission of inquiry which gave a questionable finding about the Sikh massacre. Then he became CJI. After retirement, he became NHRC chairman and then again sat to bail out the Congress in the Sikh riots issue. Then joined the Congress and came to Rajya Sabha. After Rajya Sabha, he was again made the chairman to give reservation to the minorities.
Judges came into politics through election, with nomination, became Governors but the institution’s integrity was never compromised. This background is very important.
What was the criteria for Ranjan Gogoi?
This is the discretion of the President, something you will have to trust. The President decides in consultation obviously. If a former CJI is coming as a fully nominated member to Rajya Sabha without aligning to any party, his great wisdom and experience will add to the standard of debates in the Upper House.
On that analogy, let me ask you. If an editor is nominated — two of the editors have been nominated, Kuldip Nayar and H K Dua. Does it mean that the integrity of The Indian Express was compromised? Did it affect the independence of The Indian Express? The owner of a newspaper was nominated, Shobhana Bhartia. Did it mean that her newspaper has stopped criticising? No.
How did the government reach a conclusion? Who took the decision? Were you in the loop?
I don’t want to comment on it.
But the BJP is a party that always criticised the Congress for such moves? BJP claims to be a party with a difference? Where is the difference here?
This government is led by Narendra Modi. Rajnath Singh, M Venkaiah Naidu, late leaders Sushma Swaraj and Arun Jaitley and Ravi Shankar Prasad fought against the Emergency. We fought for three freedoms — individual freedom, independence of judiciary and for media independence. We have suffered from the cause of independent judiciary. So, please dont preach us. That is our commitment and that is our standard for a party with a difference.
Justice Ranjan Gogoi dealt with a number of politically sensitive cases such as Rafale, NRC and Ram Mandir in which the government’s role came under criticism. Also there is a perception that the judgments were line with the BJP’s liking. Against that backdrop, don’t you think that the nomination would trigger doubts in the minds of citizens?
This is a very sad comment to make. Do you make similar allegations against judgment given by the judges I mentioned — Subbarao to Chagla to many others? Was that because of the induction of persons like Baharul Islam and Ranganath Mishra, which were highly questionable at that time, the independence of judiciary suffered? What’s the logic behind this argument now? Emergency was a bad time and the collective wisdom of people of India had risen. Congress has no face.
You have to see these judgments on their merits. Whether they were good judgments on facts, evidence and law or not? Some people wanted to stall acquisition for the Army? Was that fair? As a former lawyer of Ram Lulla, I know for sure, there’s so much of overwhelming evidence that any fair court would have come to the same conclusion. Unfortunately, a new trend is developing, some people want to control the polity of the country through motivated litigation in the Supreme Court corridors. They are those who have been defeated by the people of India. When the judgments are not to their liking, they start raising questions which is unfair.
Former judges, especially those Collegium members who came out with him (Gogoi) to make an allegation of government interference, have reacted strongly and said this would compromise the independence of judiciary. Your comment
There are judges and there are judges. I dont want to join any issue with any retired judge except to say there are judges, there are judges.
The first Law Commission report led by then Attorney General M S Setalvad had proposed that like the CAG, judges should also be barred from taking any posts?
There is a larger issue here. They have a point. I respect the reports of the Law Commissions. But that judges should not take up any appointments post-retirement is a question to be decided in its entirety. This will includes the tribunals, many commissions and many arbitrations. You should not become an arbitrator when the government is a party!
📣 The Indian Express is now on Telegram. Click here to join our channel (@indianexpress) and stay updated with the latest headlines