In India, where the Supreme Court is not only a constitutional court but also the final arbiter of political questions, the political detour taken by former Chief Justice of India Ranjan Gogoi raises questions about the judiciary’s independence, said Faizan Mustafa, a senior law professor and constitutional law expert.
On 16 March, President Ram Nath Kovind nominated Gogoi, who retired as India’s Chief Justice in November, to the Rajya Sabha, sparking controversy. He is the first former Chief Justice of India to be nominated to the Upper House of the Parliament.
In April last year, a junior court assistant accused Gogoi of sexually harassing her, and using his influence to terminate her employment at the Supreme Court. Gogoi has denied the allegations. In January, news reports said that she has been reinstated by the court.
Unlike other former judges, who either contested elections to enter politics or waited for years after retirement to be elevated to a legislative profile, Gogoi transitioned to the legislature after spending his final year bailing out the government, said Mustafa.
“The legal term res ipsa loquitur, which means facts speak for themselves, applies here. When a former CJI gets a Rajya Sabha nomination after he passes judgments after judgments that favour the government, the facts speak for themselves,” Mustafa told HuffPost India in an interview.
Is it right for Justice Ranjan Gogoi to accept a legislative position on nomination after serving as CJI?
Legally the former chief justice is well within his right to accept the nomination. He can also act as a bridge between the legislative and the judiciary, but this is a question of propriety. There is a difference between legality and propriety.
For instance, Justice Gogoi when he was the CJI did not recuse himself from hearings on Assam NRC even though he hails from the state and as Ahom had a direct stake in the matter. At that time, the appropriate decision would have been to recuse himself from this bench. It was a matter of propriety. Similarly, though the Constitution does not prohibit either a former CJI or any judge from entering politics after retirement, it would have been proper had both the government and Justice Gogoi employed a cooling-off period between retirement and acceptance of the post. Even IAS officers who are several ranks below the CJI are not allowed to join private establishments for two years after their retirement to prevent conflict of interests towards the end of their service. Why should the same not be applicable, as a matter of propriety, to Supreme Court judges including former CJI Gogoi?
“Legally the former chief justice is well within his right to accept the nomination. He can also act as a bridge between the legislative and the judiciary, but this is a question of propriety. There is a difference between legality and propriety.”
After Justice Gogoi was nominated by President Kovind, Bharatiya Janata Party (BJP) leaders and political observers had pointed out that he is not the first Supreme Court judge to take to politics. Has the distance between the judiciary and legislative been narrowing over the years?
In the past judges did become politicians and politicians too in a few cases had become judges. Former CJI Mohammed Hidayatullah was appointed the Vice President of India in 1979 during the term of Prime Minister Charan Singh of Janata Party. That appointment was not made by the Congress, which was in power when he had served as the CJI. Similarly, the 21 CJI Justice Ranganath Mishra contested Rajya Sabha elections on a Congress ticket to win and finally become a Rajya Sabha MP. In another example, Justice GM Lodha, the Chief Justice of Guwahati High Court, was elected to Lok Sabha on a Bharatiya Janata Party ticket and former Supreme Court judge KS Hegde also contested and won Lok Sabha elections. The latter was also elected as the speaker of Lok Sabha. Justice Krishna Iyer on the other hand was elevated to the position of a Supreme Court judge after having served as law minister of Kerala. None of these cases draw a parallel with Justice Gogoi because unlike him, who was nominated to Rajya Sabha shortly after demitting office, they were either elected by the people or nominated after a cooling-off period. Nomination of Justice Gogoi soon after his retirement has given rise to the suspicion that the judiciary is not independent. It has become an unnecessary embarrassment to both the judiciary and the government. No one will benefit by his nomination.
Why do you think judiciary’s independence is under question in this case alone even though other judges had taken the political route in the past?
If the cooling-off period which I mentioned earlier is not enforced, independence of judiciary comes under scrutiny. Independence of judiciary is not the right of the judge. It is the right of the people. If people get the perception that their judges are not entirely and fiercely independent and that the government of the day can influence them with post-retirement promises, the credibility of the Supreme Court as an institution will shatter. Because Justice Gogoi was nominated by an exercise of the discretion of the President, who is believed to have acted on behalf of the executive headed by the Prime Minister, it brings to question all the judgments that the former had passed in which Union government was favoured though the judgments may have been in accordance with law. Of course experts had raised doubts even about the correctness of his interpretation of law in some of the controversial decisions.
In law schools, students are taught that justice should not only be done but it should appear to have been done. The appearance of justice being done is even more important than justice having been done. If there is even an iota of doubt in the minds of the litigants that our judges are not independent, that is the end of the independent judiciary. With this nomination, even the judgments which Justice Gogoi may have given on sound legal footing have now become controversial judgments.
“The appearance of justice being done is even more important than justice having been done. If there is even an iota of doubt in the minds of the litigants that our judges are not independent that is the end of the independent judiciary.”
In retrospect, do any of Justice Gogoi’s judgments seem to have been passed while allegedly eyeing favours from the incumbent government?
I am not of the opinion that Justice Gogoi passed judgments based on extraneous considerations. But some of his judgments had come under legal scrutiny because they were legally unsound. Now the public can consider these judgments as biased because he got nominated to the House of Elders following retirement.
It should be kept in mind that in India, though our Supreme Court is a constitutional court, most constitutional questions are fundamentally political questions. When the incumbent government is party in around 80% of the cases that come for hearing in the Supreme Court, the rulings can go in favour of the ruling political party or the opposition, thereby making the constitutional court the final arbiter of political questions. For example, if the Supreme Court had ruled against the incumbent government in Rafale scam which had come up for hearing before the general elections of 2019, it would have had a huge impact on PM Narendra Modi’s reelection. When CJI Gogoi did not hear the electoral bond case in a general election year he ended up favouring the ruling government. When Justice Gogoi referred the Sabarimala verdict to a constitutional bench for further arbitration, he had indirectly favoured the ruling party’s ideology. Similarly, in Babri Masjid case, when the ruling indicated that one party (Muslims) should provide exclusive proof of possession (of the disputed site) and the other party’s (Hindus) mere belief was enough for possession, the judgment favoured one political party, the BJP.
Therefore, the prime problem with the nomination is that even if Justice Gogoi had been absolutely neutral and had acted in accordance with the law, his action may lead people to question the Supreme Court. If the court is considered weak, the credibility of judicial review which keeps a check on legislative arbitrariness will be lost. We need a powerful, independent and just judiciary in a democracy.
In 2018, when Justice Gogoi along with three other judges of the Supreme Court held a press conference to criticise the then CJI Dipak Misra, he was lauded by many including his current detractors. How is that press conference which had political implications different from his current decision to accept the MP’s role?
In that press conference, which was held after Justice Loya case (Justice BH Loya’s suspicious death while he was hearing the Sohrabuddin Sheikh encounter case) was referred to a junior judge J. Arun Mishra, the four judges including Justice Gogoi had indirectly accused CJI Misra of acting under the influence of the government. Later, in a (Ramnath) Goenka memorial lecture which he delivered, he had said that noisy judges are good for democracy. During his term as CJI, Justice Gogoi however, was not a noisy judge. During his term, the allegation that the Supreme Court is bailing out the government only strengthened. It led to erosion of people’s faith in the democracy.
Are you saying that Justice Gogoi addressed the 2018 press conference to strengthen the judiciary and that his MP nomination has undermined the very faith in the same judiciary?
The legal term res ipsa loquitur, which means facts speak for themselves, applies here. When a former CJI gets a nomination after he passes judgment after judgment that favoured the government, the facts speak for themselves.
“Retirement age of judges should be raised to 70 years. They should be given their last salary as pension and not given any post that does not involve judicial or quasi-judicial work for at least three years.”
Does this set a precedent for the current and future CJIs and judges of the Supreme Court to favour the government and appease the executive? After the legislative passed the Citizen Amendment Act 2019, the protests which broke out across the country had people looking up to the Supreme Court for respite despite the lukewarm response of CJI SA Bobde.
Every CJI has their own firm belief and ideology. I do not think that any judge acts on behalf of any extraneous considerations. I am inclined to believe that judgments are passed fairly, independently and honestly. However, judges are also human beings who can draw conclusions based on the example set by Justice Gogoi; that if they favour the government they may be rewarded. Judges can also deduct that they may be punished if their judgments oppose the government. The recent seemingly arbitrary transfers of judges are examples of the kind of punishments the executive can impose. When Justice AN Ray was elevated as CJI even though he was junior to three other judges, Justice Hidayatullah himself had said that while we should ideally have “forward-looking judges” we can also have judges who “look forward” to post-retirement opportunities.
In National Judicial Appointments Commission judgment of 2016, Justice JS Khehar had discussed at length this issue and maintained that the government should distance itself from judicial appointments as judges feel obliged to deliver governmental favours. Now, with this nomination it seems the executive too likes to repay favours to judges. Interestingly, in one of his judgments, Justice Gogoi himself had opposed post-retirement postings of judges. Why he went against his own judgment, he may probably explain after taking oath.
What should ideally be done if judges want to transition to politics without raising questions on judicial independence?
Retirement age of judges should be raised to 70 years. They should be given their last salary as pension and not given any post that does not involve judicial or quasi-judicial work for at least three years. The post-retirement perks of judges should be identical to the benefits they were being given while in service.