The central government and former chief justice of India (CJI) Ranjan Gogoi, who was sworn in as a member of the Rajya Sabha on Thursday (March 19), after being nominated by the President, albeit amid criticism, have a duty to answer four pertinent questions:
- Does the act of nominating and accepting the nomination as Rajya Sabha MP, within four months of retirement, violate the spirit and letter of the Constitution of India?
- Does it violate the basic structure of Constitution in keeping the executive separate from the judiciary?
- Did such a step commit contempt of court by undermining the credibility of the judiciary as an institution and shattered the respect for position of CJIs among the people? and
- Did it violate the natural principles of justice?
The constitutional law has not prescribed any prohibition to offer lucrative posts to justices after retirement. But the administrative law says any bias and conflict of interest should be avoided by the holders of constitutional positions. Trying to be in the good books of the establishment while in the office of the CJI is a major conflict of interest. Former CJI AP Shah and several other jurists and lawyers have called this nomination of a former CJI to Rajya Sabha as a quid pro quo, or reward for his pre-retirement judgments in favour of the ruling party.
Late BJP leader Arun Jaitley, a former union minister, had also attested to the view that judges should not hold government jobs after retirement.
“I have held a strong view that judges of the Supreme Court and high courts must not be eligible for jobs in the government after retirement. In some cases, the pre-retirement judicial conduct of a judge is influenced by the desire to get a post retirement assignment,” he wrote in one of his blogs.
Before Gogoi, there was Ranganath Mishra
Unfortunately, Gogoi is not the first to be lured by such a prospect. The Congress in 1998 chose former CJI Ranganath Misra as its candidate to the Rajya Sabha eight years after his retirement. It was alleged to be a quid pro quo deal. Interestingly one can read an obvious link between the favourable report by Misra into the 1984 anti-Sikh riots and his ticket to Rajya Sabha. As the one-man commission inquiring into the riots, Misra had absolved Congress leaders of all the charges and gave them clean chits, thereby earning himself a ticket to the upper house.
The Citizen’s Justice Committee (CJC) headed by former justice VM Tarkunde was invited to assist the commission in its fact finding. But the CJC soon withdrew from the hearing, criticising the procedures adopted by the Misra Commission. A serious allegation of the CJC was that the commission did not protect the witnesses who were continuously threatened and intimidated by the accused. For the favour that Misra did to the Congress party, he was officially rewarded, but after eight years. The only difference between the stories of Ranganath Mishra and Ranjan Gogoi is that the legal gratification was granted within four months, just after the latter’s retirement. Is it not so Mr Gogoi?
Curious case of justice Sathasivam
Ealier, justice Palaniswamy Sathasivam, the 40th CJI was appointed as the governor of Kerala, just four months of his retirement in April 2014, just a year after the NDA government came to power.
“There are instances of judges taking charge of the Green Tribunal, National Human Rights Commission… But what is in the persona or decisions of the most recently retired judge that has pleased the prime minister and BJP leader Amit Shah? This is a question that needs to be probed,” a Congress leader commented.
A little before his retirement, Sathasivam headed a bench of the Supreme Court which quashed a second FIR against Amit Shah in an alleged fake encounter killing case, on the ground that it was linked to the bigger Sohrabuddin Sheikh killing case and did not need to be separate.
“There was no quid pro quo for my verdict on Amit Shah. Any other judge would have given the same verdict,” he had told the media after pronouncing the judgement.
Baharul Islam – A politician turned SC judge
Baharul Islam, a politician resigned from his Rajya Sabha membership of 10 years in 1972 to become a high court judge. After retiring from the high court in 1980, he was made a Supreme Court judge during the Indira Gandhi regime. Islam’s bench gave a clean chit to politician Jagannath Mishra in a corruption case. He was soon offered a Rajya Sabha membership by the Congress after demitting office.
How Gogoi landed his RS fortune
Former CJI Gogoi accepted the nominated post of Rajya Sabha in March 2020, four months after his retirement. He was nominated by the central government which has deep interests in several matters that were before the bench headed by him during his tenure as CJI.
He as the master of the apex court roster had decided which matter should be heard by which bench and kept important cases challenging the actions of the government under the ambit of benches headed by him.
This is the major conflict of interest in breach of constitutional morality. Almost of all his decisions went in favour of the ruling party in cases like Rafale matter, dismissal of CBI director Alok Verma, Ram temple in Ayodhya etc. Besides the delay and inaction in several cases like habeas corpus writs from Jammu Kashmir victims and matters dealing with special status to Jammu & Kashmir etc, also saved the NDA alliance from embarrassment.
It is also against the Indian constitutional scheme, which is founded on fundamental principle of separation of powers of the executive and the judiciary. Gogoi headed benches in key cases that the same government which has nominated him had important political stakes in. Is it not unconstitutional friendship between executive and judiciary?
Difference in preaching and action
A report by Vidhi Centre for Legal policy in December 2016 stated that 70 of the last 100 retired Supreme Court judges have accepted government posts after their retirement. One reason for this is that several laws require the former judges to be appointed in positions created under them. Report says 56 per cent appointments were required to be made.
National Human Rights Commission, National Company Law Appellate Tribunal, the Law Commission of India and several other tribunals are created under various legislations for post-retirement of judges. Hence during the last year of service, the judges will be counting the positions available and keep good relations with the establishment, chief justices and other influential power centres. Can we say it is the same with you too Mr Gogoi?
Gogoi, the latest beneficiary from executive now, has said from a bench (on March 26, 2019, while dealing with case of post retirement appoint of judges in tribunals) he was leading that post-retirement job for judges is a scar on the idea of judicial independence. It is difficult to expect unbiased judgement on merits displeasing the establishment year before retirement of a judge. And the law provides for it. We still claim that our judiciary is independent and accountable. Mr Gogoi will you please read your own judgment once more?
Contempt of court
Articles 129 and 215 of the Constitution of India, confer powers on the Supreme Court or the high courts, in recognition of a pre-existing position that those courts are the ‘courts of record’ which have inherent jurisdiction to punish for their contempt. The power given to the Supreme Court to punish for its contempt, is with an objective to uphold the dignity of the courts and the majesty of law and to keep the administration of justice unpolluted so that it may not be lowered, and also to preserve the functional utility of the constitutional edifice from being rendered ineffective.
In JR Parashar vs Prashant Bhushan (2001) 6 SCC 735. Para 12, the Supreme Court held that the civil society is founded in the respect for the law. If everyone chooses to break the law, no civil society can exist at all. The governments at the Centre, during the rule by Congress and BJP have undermined respect of the judiciary by such acts of luring the judges in office with post retirement positions in return to the favourable orders, which are acts of contempt of constitutional courts, for which they should be punished by the apex court. Will the Supreme Court use its power against these latest acts of contempt by the government and Gogoi?
Natural principle of justice
The government is the biggest litigant in all the courts in India today including the apex court. It has the power to influence the judicial process by luring the retiring judges with lucrative positions after they demit office. This means the litigant choses its own judge and offers favours. Regarding Gogoi, it was criticised that the accused (of sexual harassment) sits in judgment to acquit himself, without hearing the other-side (complainant-victim was not given a chance to represent her case). Hence two natural principles of justice- audi alterum partem (hear the other side) and nemo debit in causa sua (not to be a judge in one’s own cause) are violated. Have you not violated these natural principles Mr Gogoi?
(The author is a former Central Information Commissioner)
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not reflect the views of The Federal)