Appointment of former CJI to Rajya Sabha: A Critical Analysis

By | April 16, 2020
Appointment of former CJI to Rajya Sabha

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This article “Appointment of former CJI to Rajya Sabha” discusses the validity of such an appointment and whether it compromises the independence of the judiciary or not.

Introduction

On 16th March 2020, the President of India, Shri Ram Nath Kovind, nominated the former Chief Justice of India (CJI) Ranjan Gogoi to the Rajya Sabha in exercise of the power conferred to him under article 80(1)(a) of the Constitution of India,[i] read along with clause (3) of the same article.[ii] The nomination was accepted by Mr. Gogoi the very next day, citing his “strong conviction that the legislature and the judiciary must, at some point of time, work together for nation-building.” However, this acceptance was met by criticism across the nation, which has raised concerns over the independence and impartiality of the judiciary.

In a nation like ours where the Constitution is upheld to be the supreme law of the land, the judiciary plays an important role in protecting citizens’ rights against the vested interests of the government. Against the backdrop of the doctrine of separation of powers, this function of the judiciary enables citizens to not only blindly trust the organization, but also hold judges in high esteem. In such a scenario, news confirming the appointment of Mr. Gogoi to the Rajya Sabha within only four months of his retirement, is highly troubling.

Not a new trend

Mr. Ranjan Gogoi is the first former CJI to be directly nominated to the Rajya Sabha. However, contrary to popular belief, the practice of appointing former judges to government positions is not unprecedented. While the direct appointment of Mr. Gogoi may be the first of its kind, several variations of such instances remain documented in history. Eminent judges like Former CJI P Sathasivam became the governor of Kerala in 2014 within four months of his retirement from the Supreme Court. Former CJI Ranganath Misra contested Rajya Sabha elections on the ticket of a prominent national political party, seven years after his retirement.

In the past also, such controversial appointments have been severely criticized because they are seen as concessions or rewards granted by the government to these judges who have decided important cases during their tenure. While it may not be true that they deliberately sided with the government in these cases, the evolution of conspiracy theories is difficult to avoid seeing the suspicious timing of these appointments.

The very same incidents prompted the former Union Finance and Law Minister, late Mr. Arun Jaitley to remark that “pre-retirement judges are influenced by post-retirement jobs.”

Legally allowed- then what are the reasons behind this criticism?

Technically, the appointment of Mr. Gogoi is constitutionally valid[iii] as judges are eminent luminaries in the profession of law, which is often regarded as a kind of social work.[iv] Even article 124(7)[v] does not create a bar or disqualification for a Judge of the Supreme Court to offer his candidature for membership or to become a Member of Parliament.[vi] Yet, the criticism meted out in response to this news makes one desirous of analysing the reasons behind it.

  • Principle of separation of powers

Montesquieu’s doctrine of separation of powers is recognized as the bedrock of Constitutions around the world. It distributes power among the three organs of the government- legislature, executive and judiciary- so as to create a unique system of checks and balances. The underlying logic is that if the same body is invested with all the powers, then it will lead to tyranny. This allows each organ to function independently, while protecting the liberty of citizens to the greatest possible extent.

The theory of separation of powers signifies three formulations of structural classification of governmental powers:

  • The same person should not form part of more than one of the three organs of the government. For example, ministers should not sit in Parliament.
  • One organ of the government should not interfere with any other organ of the government.
  • One organ of the government should not exercise the functions assigned to any other organ.

Given the complex functioning of modern-day governments resulting in interdependence, it is almost impossible to implement this doctrine rigidly. Hence, several Constitutions have adopted this doctrine with certain variations. In India, this was emphasized by the Supreme Court in the case of Ram Jawaya v. State of Punjab.[vii] The doctrine has been recognized as a part of the basic structure of Indian Constitution in the case of Kesavananda Bharati v. State of Kerala.[viii]

Thus, the doctrine of separation of powers protects citizens’ rights from being encroached by the exercise of arbitrary authority. The judiciary in itself plays a crucial role in safeguarding people’s liberties, especially with the rise of judicial activism. In light of all this, accepting a legislative position almost immediately after having served in the capacity of the Chief Justice of the country, is sure to raise more than a few eyebrows and questions amongst the public.

  • Rendering judgement in sensitive cases

Mr. Ranjan Gogoi has headed benches which have decided several important cases in the past two years. Amongst them are the Babri Masjid-Ayodhya temple judgement,[ix] the Rafale deal judgement[x] and the Sabarimala judgement.[xi] Almost all these judgements have been decided in favour of the government. While this may not have been suspicious at the time, allegations now point towards the nomination being a reward from the government in return for his service. Such allegations threaten to ruin not only Mr. Gogoi’s credibility but also the credibility of the judiciary as a whole.

  • Independence and Integrity of the Judiciary

The independence and integrity of the judiciary lays a strong foundation, upon which rests the faith and respect of a billion Indians. People believe that the judiciary protects them from the exercise of arbitrary power of the government, having seen it in the past through various landmark judgements. Judges have always recused themselves from rendering political opinions, for fear of being viewed as biased while pronouncing judgements in cases where the government is one of the parties. Being servants of the temple of justice, they have to present a united front against all other forces (including public opinion) which can threaten to corrupt power.

The Constitution itself ensures independence of the judiciary in multiples ways, be it through judicial review,[xii] appointment of judges through the collegium system,[xiii] protecting their tenure[xiv] or punishing contempt of judiciary.[xv] Hence, an independent judiciary is expected by every citizen of the country and is not only a fundamental right but is also a part of the basic structure of our Constitution.[xvi] It helps to maintain the rule of law, thus making our democracy a successful one.[xvii]

As a result, when a former CJI is appointed as a Member of Parliament, it threatens to destroy the legacy which the judiciary has built over the course of so many years by distancing itself from other institutions and controversies. Even when a judge retires, he continues to remain an important part of the legal fraternity. Moreover, he is aware of the internal functioning of the judiciary by virtue of his office which is not made transparent for obvious reasons. When such a member crosses over this divide to step into a legislative capacity, it is bound to invite criticism, even from jurists. It then only remains to be seen if this judicial independence and integrity is actually protected or not.

Constituent Assembly debates regarding an independent judiciary

The drafters of our Constitution wanted to ensure the independence of the judiciary to the maximum possible extent. An amendment was proposed by Prof. K. T. Shah that under Chapter IV of Part V of the Constitution (The Union Judiciary), the following new article be added:–

“102-A. Subject to this constitution the Judiciary in India shall be completely separate from and wholly independent of the Executive or the Legislature.”

Prof. Shah’s reasoning behind this amendment was to ensure the separation of powers. He gave instances of how the powers of the judiciary and the executive were combined in the same officer during British rule, leading to a decrease in efficiency. He also believed that no good could come of the presence of the judicial element in the legislature. He strictly believed that judges should adhere to the letter of the law as they are the final authority on interpreting such law. Such separation was necessary from the point of view of civil liberty and the general democratic character of the governance of the country.

An enlightening debate ensued during which members explained why the amendment should be adopted or rejected. K. M. Munshi, member of the Drafting Committee, acknowledged that the separation of powers cannot be absolute, and that independence of the judiciary had already been ensured through various provisions. At one point of time, he also mentioned “I am sure he is not going to look up to any future prospects from Government after his term of Judge is over.” Some others like H. V. Kamath and B. R. Ambedkar believed that this amendment was redundant, as Article 39-A had already provided for separation of the judiciary from the executive in the public services of the state.

Finally, this amendment was rejected. But the debate shed light on the fact that each member of the Constituent Assembly wanted to ensure separation of powers and independence of judiciary to the highest level. Hence, the appointment of Mr. Gogoi to the Rajya Sabha has violated the vision which our Constitution makers harboured for our nation.

14th Law Commission Report on Reform of Judicial Administration

The 14th Law Commission Report[xviii] was released in 1958. It examines various aspects of judicial administration like the functioning of the Supreme Court and the panchayats, separation of judicial and executive functions and delays in the judicial system. The Report also discusses the appointment of judges to government positions.

In order to preserve the prestige of the judiciary, the Report recommends that both High Court and Supreme Court judges should be barred from practice or employment under the Union or a State after retirement. While commenting upon the declining standards of the judiciary, the Report recommends that there should be no scope for expectations in the minds of the Judges, before or after their retirement, of employment by the Union or the State.

Paragraph 28 of the Report mentions how, after retirement, some Supreme Court judges have set up chamber practice or found employment in important positions under the Government. This is seen to be inconsistent with the dignity of these retired judges, especially when compared to the high traditions retired judges observe in other countries. Paragraph 29 of the Report clearly states, “But there can be no doubt that it is clearly undesirable that Supreme Court Judges should look forward to other Government employment after their retirement.”

Explaining the reasoning behind this, the Law Commission Report explains, “The Government is a party in a large number of causes [cases] in the highest Court and the average citizen may well get the impression, that a judge who might look forward to being employed by the Government after his retirement, does not bring to bear on his work that detachment of outlook which is expected of a judge in cases in which Government is a party.”

“We are clearly of the view that the practice has a tendency to affect the independence of the judges and should be discontinued,” the Law Commission concluded. However, sadly, this Report was never implemented. Nevertheless, it adequately analyses why the effect of such appointments is negative, and should be avoided at all costs.

Appreciation of the Appointment

While the appointment of the former CJI to the Rajya Sabha has been widely condemned across the legal fraternity, some sections have hailed this event as a unique opportunity to bridge the gap between the legislature and the judiciary. The Bar Council of India (BCI) is one such section.

In a recent press release issued by its Chairman, the BCI has praised this nomination as “an ideal opportunity to portray the first-hand views of the judiciary before the lawmakers and vis-a-versa.” It has also denounced the views of other former judges and lawyers who have criticized the appointment, citing Article 80(1)(a) of the Constitution.[xix] It believes that such “reckless comments would be an attempt to malign the image of judiciary.”

While comparing this appointment to previous instances (like that of former CJI Ranganath Misra), the BCI has tried to justify Mr. Gogoi’s nomination as being “the fittest from every point of view” because he was a direct choice of the President of India and did not join any political party, hence proving that Mr. Gogoi’s nomination was not politically motivated. Finally, the BCI has acclaimed that the nomination is “an epoch decision, which will go a long way in the process of nation building.”

Conclusion

The appointment of Mr. Ranjan Gogoi may be viewed as violating the ethical principles of integrity for which the judiciary stands. In the case of K. P. Singh v. High Court of H. P. and Ors.,[xx] Justice Kurian Joseph remarked that “integrity depicts sterling character with firm adherence to a code of moral values. Judiciary is an integrity institution. Therefore, judicial officers should possess the sterling quality of integrity.”

In the case of Tarak Singh v. Jyoti Basu,[xxi] the Supreme Court held that integrity is the hallmark of judicial discipline. Having regard to the plain truth that the judiciary is also manned by human beings and yet in view of their privileged position, it was cautioned as follows:

“There is nothing wrong in a Judge having an ambition to achieve something, but if the ambition to achieve is likely to cause a compromise with his divine judicial duty, better not to pursue it. Because, if a Judge is too ambitious to achieve something materially, he becomes timid. When he becomes timid there will be a tendency to make a compromise between his divine duty and his personal interest. There will be a conflict between interest and duty.”

Justice Gogoi’s retirement from the Supreme Court does not impact him being a respected member of the judicial fraternity. Hence, one would expect him to act with the same dignity as is expected of a judicial officer. It is not unreasonable to think that he would continue respecting principles like separation of powers and independence of judiciary which, in the past, have been observed by judges even after retirement. In light of all this, his acceptance of the nomination to become a member of the Rajya Sabha cannot be justified.


By – Akshita Tiwary

The author is a student at Government Law College, Mumbai.


[i] India Const. art. 80(1)(a).

[ii] India Const. art. 80(3).

[iii] ibid.

[iv] Homer W. Sloane, Relationship of Law and Social Work, 12 Social Work 86–93 (1967), https://www.jstor.org/stable/23710171?seq=1 (last visited Apr 2, 2020).

[v] India Const. art. 124(7).

[vi] Ananga DS Deo v Ranga Nath Mishra, (2001) AIR 24 (Orissa High Court) (India).

[vii] (1955) 2 SCR 225.

[viii] (1973) 4 SCC 225.

[ix] M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors. (In the Supreme Court of India, Civil Appellate Jurisdiction, Civil Appeal Nos. 10866-10867 of 2010).

[x] Yashwant Sinha and Ors. v. Central Bureau of Investigation Through its Director and Anr. (In the Supreme Court of India, Civil/Criminal Original Jurisdiction, Review Petition (Crl.) No. 46 of 2019 in Writ Petition (Crl.) No. 298 of 2018).

[xi] Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors. (In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No. 373 of 2006).

[xii] India Const. art. 32, 226.

[xiii] India Const. art. 124(2), 217(1).

[xiv] ibid.

[xv] India Const. art. 129, 215.

[xvi] S.B. Sinha, Judicial Independence, Fiscal Autonomy And Accountability, Nyaya Deep 21 (2006).

[xvii] S P Gupta v Union of India, (1982) 2 SCR 365 (India).

[xviii] Law Commission, (1958) Reform of Judicial Administration (Law Com No 14).

[xix] India Const. art. 80(1)(a).

[xx] (2011) 3 KLJ 11.

[xxi] (2005) 1 SCC 201.


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