December 3, 2020

DOES THE INCLUSION OF AN EX-CJI INTO ANY HOUSE OF PARLIAMENT AFFECT THE MAINTAINED SYSTEM OF CHECKS

Introduction

“In exercise of the powers conferred by Sub-Clause (a) of Clause (1) of Article 80 of the Constitution of India, read with Clause (3) of that Article, the President is pleased to nominate Shri Ranjan Gogoi to the Council of States to fill the vacancy caused due to the retirement of one of the nominated members,”.[1]

On 19th March 2020, former Chief Justice of India Ranjan Gogoi took oath as a member of Rajya Sabha. This nomination of an Ex-Judge by the President has become a topic of controversy amongst some in the court as well as by the opposition party Congress.

Prior Appointments of Ex-CJIs To Parliament

Appointment of Ranjan Gogoi isn’t the first instance in the democracy of India when an Ex Judge has been given a position in parliament after retirement.

1. Justice Ranganath Mishra

Justice Rangnath Mishra was given a ticket by congress in the year 1998, after more than six years of retirement. A question regarding Quid Pro Quo i.e. something for something was raised as during his tenure he gave a clean chit to congress for anti-Sikh riots in 1984.

2. Justice Baharul Islam

He was the member of the Rajya Sabha from 1872 to 1972 and then become the judge in the Guwahati High Court. Later appointed in Supreme Court in 1980 then he was assigned in 1983 in Rajya Sabha. Islam’s judgement which gave relief to the then Congress CM of Bihar- Jagannath Mishra, in Patna Urban Cooperative Bank scam case became a controversy.

3. Justice Mohammad Hidayatullah

Justice Hidayatullah was the chief justice of India from 1968 to 1970 and later served as the vice president from 1979 to 1984.

4. Justice KS Hegde

The election of Shri K.S. Hegde as the Speaker of the Sixth Lok Sabha was unprecedented in the sense that he was chosen to occupy the high office in his very first term as a member of the Lok Sabha. His professional career is also unique since he was a member of the Rajya Sabha before he entered the Judiciary.[2]

Arguments against J. Gogoi

In paragraph 29 of 14th report of the law Commission of India [3]states that judges should not take any government job after retirement because in most of the cases which appear to the Supreme Court, the government is a part of it and if the CJI get appointed in legislature than these cases is highly affected.

The nomination came only after four months of retirement of the CJI, which brings a question of Quid Pro Quo given that Ranjan Gogoi gave a spade of judgements favouring the government.to list down a few –

1. Ayodhya judgement

In November 2019, a bench led by CJI Gogoi, granted the age-old disputed land to Hindus for construction of Ram Mandir and ordered government to allot 5-acre plot for construction of Mosque. This becomes relevant in the light of the fact that Ram temple in Ayodhya has been at the core of the ruling party Hindu Nationalist Politics for three decades.[4]

2. Rafael Case

On 14 November 2019 another bench, headed by Justice Gogoi gave a clean chit to the Modi government in Rafael case, ignoring several review petitions. Along with this the court also held proceedings against Congress member Rahul Gandhi on “chowkidar chor hai”

3. Electoral Bonds Case

A bench headed by Justice Gogoi, did not take up Electoral Bonds issue saying that the matter needed a study in depth and at the same time no interim order was not passed to prevent issue of Electoral Bonds.

4. Kashmir Case

On 28 August 2019, following abrogation of Article 370, the SC give no relief on restriction imposed by the government on the opposition leaders in Kashmir even after several petitions were filled before the court. This clearly worked in the favor of the government.

J. Gogoi himself commented in March 2019 that “post-retirement appointment (of judges) is a scar on the independence of the judiciary”. It seems Gogoi did not follow the noble work.

In a healthy democracy there should be a natural check and balances between three pillars that is between legislature, executive and judiciary and therefore Gogoi’s argument of working together nation building sounds contrary towards the idea of check and balance. This appointment is a death Nell for separation of powers and independence of judiciary.

Post-retirement appointments of judges send a wrong message to the judiciary. It creates a legitimate expectation amongst the present judges. At the same time it creates a fear that if the judgements are not given in the favor of the government they may lose a chance to get appointments after retirement.

Arguments in favour of Justice Gogoi

Justice Gogoi is not violating any law. There is no legal hindrance to his appointment. In Article 220 and in the 14th report of the Law Commission of India [5]it is clearly stated that the retired judge from the Supreme Court will not plead in the same court where he was a judge but there is no restriction on the appointment of the Chief Justice of India to any of the two houses of parliament.

Rajya Sabha plays a big role in making the law of the country and they need experts from different fields who can guide the lawmakers in the right direction. Therefore appointing an ex- CJI in Rajya Sabha is quint essential for our nation as he possess deep knowledge in the field of law and can contribute more rather than appointing cricket payers or actors.

After nomination, in a press report Gogoi responded to the criticisms by responding that “the legislature and the judiciary must work together for nation building”.

“my presence in the parliament would be an opportunity to project views of judiciary before the legislature and vice versa”.

The allegation that justice Gogoi gave judgement in favour of the government not valid because in these judgments there is a bench of minimum 3 to 5 judges and all these judge’s opinion matters. And therefore his appoint was independent.

CONCLUSION

Therefore maintaining independence of the judiciary there should be a uniform policy that judges should not take government jobs after retirement and they must get the last salary as pension; for. For instance, under Section 8(1)(iii) of Lokpal Act, 2013 states- on ceasing to hold office, the Chairperson and every Member shall be ineligible for reappointment in any government office[6] . Similarly there must be a clarification in allowing or disallowing post-retirement appointment of judges.

None the less in case post-retirement appointments are allowed there should be some measures to ensure no malpractice occur. For instance there should be a mandatory cooling off period as seen in the cases of Justice Rangnath Mishra and Justice Hidyatulla.

However before the changes are introduce it is essential that the judges keep image of the judiciary high and avoid all such kind of practices that J. Gogio exhibited.


[1] FPJ Web Desk, How Congress appointed former CJI Ranganath Mishra – who gave clean chit to party in 1984 riots – to Rajya Sabha, (03.17.2020), https://www.freepressjournal.in/india/how-congress-appointed-former-cji-ranganath-misra-who-gave-clean-chit-to-party-in-1984-riots-to-rajya-sabha

[2] https://speakerloksabha.nic.in/former/hegde.asp

[3] Law commission, reform of judicial administration (Law com No 14, 1958) para29

[4] Apoorva Mandhani, Ayodhya, Rafael and more – 5 big Ranjan Gogoi verdicts that ‘worked in favour of Modi govt’(march17 2020) https://theprint.in/judiciary/ayodhya-rafale-and-more-5-big-ranjan-gogoi-verdicts-that-worked-in-favour-of-modi-govt/382630/

[5] Law commission, reform of judicial administration (Law com No 14, 1958) para28

[6] Lokpal Act, 2013, sec8(1)(iii), page no. 6

Author Details: Divya Mehta and Surabhi Agrawal (Institute of Law, Nirma University)

The views of the author are personal only. (if any)

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