There is a light-hearted maxim that lawyers are fond of quoting: “There are two types of judges — those who know the law and those who know the law minister.” The Narendra Modi government’s tenure has seen the emergence of a third type of judge — those who know the prime minister.
Former Chief Justice Ranjan Gogoi’s rushed nomination to the Rajya Sabha has drawn legitimate criticism and analysis concerning its timing and has led to many unfavourable inferences, whether justified or otherwise. In this context, it becomes important to revisit the jurisprudence and political commentary on this subject.
Our founding fathers dedicated a considerable amount of time to debating the importance of an independent judiciary and in ensuring that adequate safeguards are installed to prevent interference by the executive or the legislature. This principle was further elaborated upon by the Supreme Court to state that “the constitutional scheme aims at securing an independent judiciary, which is the bulwark of democracy”. Consequently, judicial independence along with the doctrine of separation of powers – between the legislature, executive and the judiciary – have been repeatedly held to form part of the basic structure of the Constitution. Unfortunately, these safeguards are now being callously disregarded.
The defence that the BJP propaganda machine is putting forth is that it has happened before. But that is a deliberately disingenuous half-truth designed to mislead the loyal support base that is unlikely to question them further. It is a fact that no elevation of a former judge to the Rajya Sabha was done in an audacious manner that mocks the wisdom of people. There was a cooling-off period (between retirement as a judge and the subsequent nomination), in one case of almost a decade (Justice M Hidayatullah), of almost six years in another (Justice Ranganath Misra). And Justice Baharul Islam was a Rajya Sabha member for over a decade before he became a judge of the Supreme Court and not vice-versa. None of these examples is comparable to the nomination of Justice Gogoi within four months of retirement. His largely deferential treatment of the government qua constitutional challenges, human rights violations and electoral malpractices left much to be desired. Even if these could have been discounted earlier, his nomination to the Rajya Sabha in this rushed manner puts his supporters in an embarrassing position.
No previous government, regardless of the BJP’s false spin, adopted such a cavalier attitude to the line drawn between the three pillars of government. In fact, the late Arun Jaitley in 2012 was quick to point out that sometimes post-retirement jobs can influence pre-retirement judgments. Piyush Goyal, Modi’s Cabinet colleague, expressed similar views. But the best view of all came from Justice Gogoi himself when he was hearing a challenge to the Finance Act. He is reported to have cited a view that post-retirement appointments (for judges) are “a scar on the independence of the judiciary”. It seems that it is easier to profess high ideals than to live up to them. The Law Commission, in its XIVth Report, has also criticised the practice of re-employing retired judges.
In Nixon M Joseph v. Union of India (1998), the question was raised by the Kerala High Court. Should retired Supreme Court and high court judges take any job, or contest an election for the legislature? The bench observed: “It is well nigh impossible for a person who has been dreaming of making a mark in the political arena the moment he quits office, be presumed to be unbiased in the discharge of his judicial function. Judges making a bee-line for plum assignments, running after office of profit after retirement, or joining the political bandwagon will certainly erode the confidence of the people in the judiciary.”
Earlier governments had a sense of responsibility towards institutions. The current government sorely lacks this. Their singular priority is continuing in office regardless of the cost to the country or its institutions. The time may have arrived to pass a law prescribing a cooling-off period for judges before they are nominated to another public office including the Rajya Sabha. There is also a need for safeguards and checks on post-retirement arbitrations, which have become the rule rather than the exception.
In the Constituent Assembly debates, an attempt to put a restriction on the re-employment of a retired Supreme Court judge by the government did not succeed. B R Ambedkar has observed that the judiciary decided issues between citizens and rarely between citizen and the government, and consequently, the chances of the government influencing the conduct of a member of the judiciary were very remote. This is, as we can all attest, no longer the reality — the government stands as the heaviest litigant and the citizens have to move the courts for the protection of their rights against the state. It is, therefore, imperative that a high-level panel of eminent jurists and politicians be constituted by the judiciary so that the safeguards in the Constitution to protect the independence of the judiciary survive not just in letter but also in spirit.
Finally, the government should remember that while this appointment may ostensibly be at the pleasure of the President, it comes at a great cost to the people of India. History will not forget or forgive this “scar”.
This article first appeared in the print edition on March 20, 2020 under the title “Crossing the line of separation”. The writer is an advocate and the AICC media in-charge.
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