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Justice Gogoi is best placed to be a non-partisan conduit between legislature, judiciary

Gogoi’s appointment, therefore, isn’t even remotely comparable to what the Congress has done in the past. One hopes that Gogoi’s appointment to the Rajya Sabha will add great value to judicial and vetting of laws enacted by the Parliament.

Written by Kartikeya Tanna |
March 19, 2020 4:50:28 am
Ranjan Gogoi’s appointment, therefore, isn’t even remotely comparable to what the Congress has done in the past. (Express photo: Tashi Tobgyal)

Earlier this week, the President of India nominated former Chief Justice of India, Ranjan Gogoi, to the Rajya Sabha. This led to a flurry of criticism from many quarters, with some calling it a blot on the independence of the judiciary and others insinuating that Gogoi was being “rewarded” for his recent judgments: Gogoi was a part of many Supreme Court benches that ruled on several landmark cases including Ayodhya, Rafale, and human rights in Jammu and Kashmir after the revocation of Article 370. His critics are insinuating that these judgments, seemingly favouring the BJP, fetched him a post-retirement job in the form of a nomination to the Rajya Sabha.

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This charge is bizarre. It suggests that the higher judiciary must never hand down a judgment that even remotely favours the ruling party. The Ayodhya ruling, which handed over the possession of the disputed plot in Ayodhya to the Hindus for a temple to be constructed, was based on the community having a greater possessory title to that piece of land. Moreover, it was a unanimous verdict — Justice Gogoi was just one of the five judges on the bench.

That said, it is vital to examine the uniqueness of Gogoi’s appointment to the Rajya Sabha. His appointment is an Article 80 appointment. Article 80 of the Constitution requires the President to nominate 12 members who possess special knowledge or practical experience in literature, science, arts and social service. The President does so with the aid and advice of the council of ministers.

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However, these are independent appointments to the Rajya Sabha. The 12 members are not required to follow party whip in the House. Gogoi hasn’t joined the BJP, or any political party for that matter, in order to be nominated to the Upper House. Gogoi can, therefore, criticise the Modi government, if he so chooses. He can also vote against the government. There is nothing that the Modi government, or the BJP, can do about it. If the BJP or the Modi government wanted to “reward” Gogoi, it would have offered him the party membership before nominating him to the Rajya Sabha.

Many BJP members and supporters have pointed out that the Congress has rewarded judges in the past. For example, a former CJI, Ranganath Misra, was nominated to the Rajya Sabha in 1998. He was the first CJI to enter the Rajya Sabha after retirement. His entry differed from Gogoi’s nomination in one critical aspect – Misra actually joined the Congress party before he was sent to the Rajya Sabha. It was not an Article 80 appointment. This meant that in all parliamentary matters before the Rajya Sabha, he had to follow the whip of the Congress party. He could not take an independent stand without consequences.

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Misra had headed a one-man commission set up by the then Rajiv Gandhi government to probe the 1984 anti-Sikh riots. His report, which was widely criticised, gave a clean-chit to the Congress party.

Justice Abhay Thipsay, a former judge of the Bombay High Court, who presided over contentious cases such as the Best Bakery case and the Sohrabuddin encounter case – some of the rulings were reversed on appeal – joined the Congress after his retirement. Justice Baharul Islam was a Rajya Sabha MP from the Congress before he was appointed to the judiciary. After retirement, he rejoined the party.

Gogoi’s appointment, therefore, isn’t even remotely comparable to what the Congress has done in the past. What Gogoi chooses to do with his role as an independent MP in the Rajya Sabha is to be seen. One hopes that Gogoi’s appointment to the Rajya Sabha will add great value to judicial and constitutional vetting of laws enacted by the Parliament. His role in joint parliamentary committees and inputs in the drafting of Bills would be critical in avoiding deadlock with the judiciary.

Far from being “rewarded” or made to toe the BJP party line, Gogoi’s appointment should be welcomed. He is best suited to be a vital, non-partisan conduit between the legislature and judiciary.

This article first appeared in the print edition on March 19, 2020 under the title “Protesting too much”. The writer is an advocate licenced in India, England &Wales and New York.

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