Introduction

On 16^th March 2020, the President of India nominated the former Chief Justice of India (CJI) Ranjan Gogoi to the Rajya Sabha. 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.

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

Technically, the appointment of Mr. Gogoi is constitutionally valid as judges are eminent luminaries in the profession of law, which is often regarded as a kind of social work. Even article 124(7) 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. Yet, the criticism meted out in response to this news makes one desirous of analysing the reasons behind it.

1. 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 ultimate aim of this doctrine is to prevent tyranny and protect the liberty of citizens to the greatest possible extent.

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. The doctrine has been recognized as a part of the basic structure of the Indian Constitution in the case of Kesavananda Bharati v State of Kerala.

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.

2. 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, the Rafale deal judgement and the Sabarimala judgement. 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.

3. Independence and Integrity of the Judiciary

The independence and integrity of the judiciary lay 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 the arbitrary power of the government. Even 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 the Judiciary in India shall be completely separate from and wholly independent of the Executive or the Legislature. K. M. Munshi, a member of the Drafting Committee, remarked: “I am sure he is not going to look up to any future prospects from Government after his term of Judge is over.”

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, the appointment of judges through the collegium system, or punishing contempt of judiciary. 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. It helps to maintain the rule of law, thus making our democracy a successful one.

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.

14^th Law Commission Report on Reform of Judicial Administration

The 14^th Law Commission Report was released in 1958. It examines various aspects of judicial administration like the separation of judicial and executive functions. 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 this appointment has been widely condemned across the legal fraternity, some sections have hailed it 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 acclaimed that the nomination is “an epoch decision, which will go a long way in the process of nation building.”

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.

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., 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, the Supreme Court held that integrity is the hallmark of judicial discipline, cautioning: “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.

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ABOUT THE AUTHOR

Akshita Tiwary

Akshita Tiwary is a second-year law student at Government Law College, Mumbai. She is interested in the field of International Law and Constitutional Law. She can be reached at akshitatiwary@gmail.com.