On 20 March, 2020, Former Chief Justice of India Ranjan Gogoi took oath as a nominated member of Rajya Sabha after he was nominated by the President of India by using his power under article 80 of the Indian Constitution.The opposition parties have heavily criticized the said move alleging that it comes as quid pro quo for the Judgments delivered by Gogoi during his tenure in the Apex Court. Many Jurists have also criticized this move. Former Supreme Court judge Kurian Joseph has shown his concern over the said nomination by stating that it has “certainly shaken the confidence of the common man on the independence of the judiciary.”What adds fuel to the fire is that the nomination comes only four months after the retirement of Justice Gogoi as Chief Justice of India.
The soul of Judiciary lies in the impartial exercise of functions by the judges in an unbiased manner. Former Senior Advocate and Union Minister Late Shri Arun Jaitley condemned the practice of rewarding retiring judges in very strong words by stating “Pre-retirement judgements are influenced by a desire for a post-retirement job… The practice of post retirement jobs is adversely affecting impartiality of the judiciary of the country and time has come that it should come to an end…” It is important to note that in most of the cases in Higher Judiciary, especially Apex Court, government is one of the parties to the litigation.
A statistical study concluded that “the largest employer of ex-Supreme Court judges is the Union Government of India.” The 14th Report of the Law Commission of India strongly recommended changes in the existing practice of post-retirement jobs for judges, arguing that it affects judicial independence as well as erodes the dignity and supreme status of the judiciary.The paramount concern of an impartial judiciary should be the civil liberties of its citizens which can only be achieved through the line of demarcation created between the judiciary and executive.
When allegations of sexual harassment were made against Justice Ranjan Gogoi while he was the CJI, the manner in which inquiry and judicial proceedings were carried out raised a lot of criticism against the CJI. He sat on the special bench looking into the complaint against him, which clearly violates principles of natural justice. The Union Government always presented its support to the CJI. The then Finance Minister Arun Jaitley asked for support for the CJI on 21 April, calling the complainant someone with a “questionable track record,” and the media that published her affidavit “institutional disruptors.” Further, the offices of Attorney General and Solicitor General of India, which had no role to play in the matter of compliance of principles of natural justice, jumped into the matter and supported the CJI and did “character assassination” of the victim. The judgments delivered by the CJI in various cases such as Rafale deal, Kashmir Habeas Corpus petitions, NRC in Assam, were in favour of the government and the nomination of Ranjan Gogoi to Rajya Sabha only four months after his retirement as CJI creates heavy possibility of quid pro quo being present. His acceptance of the nomination opens up a host of interesting questions as he was one of the four senior most judges who in a rare historical moment addressed the problem of Judicial Independence and Accountability in India, through a press conference.
Impartiality, independence, fairness and reasonableness in decision making are the hallmarks of Judiciary.Independence of judicial thought rather than independence of the judges to do what they want forms the blood of the Judiciary. The main function of the judiciary is to interpret the constitutional provisions according to constitutional philosophy and norms. In the absence of independent judiciary, it will be pressurized by the government to interpret such provisions as per their whims and wishes. In the past, India has witnessed various instances wherein a juncture between the judiciary and the executive has taken place in the form of appointment of Judges to various positions in the Executive and Legislature. Justice Ranganath Mishra became a member of the upper house of Parliament in 1998 whereas NDA government appointing Former CJI P Sathasivamas the Governor of Kerala in 2014 amongst many other such instances.However, various judges, like Justice RM Lodha and HS Kapadia to name a few, understanding the essence of independence of Judiciary, have not followed the path of post-retirement jobs.
The following guidelines in the “Bangalore Principles of Judicial Conduct (2002)” are relevant: A Judge has to ensure that his or her conduct is above reproach in the view of a reasonable man; the behavior as well as the conduct of a Judge must reaffirm the people’s faith in the integrity of the judiciary. The “Halo effect” does not leave a judge even post his retirement- “once a judge, always a judge.” An independent judiciary will lay dead in its coffin unless we stop such post retirement rewards or quid pro quo by some mean whether in the form of a “cooling period” or to see the results as stated by the NDA Union minister Mr. Nitin Gadkari in his address from 2002: “The dream to have an impartial judiciary will never actualise.”
Judiciary is the guardian of the Indian Constitution and has always held paramount faith of the citizens. The ones who hold the position of deciding the cases, the judges, are considered to be Humans of Highest Wisdom. Once the prefix ‘Justice’ is added to the name of a judge in higher judiciary, it remains there even after retirement. Thus, the conduct of a judge matters and is linked to the Judiciary even after the retirement. Any act of a judge, that could question the impartiality and independence of judiciary and the veracity of the judgments delivered in past, must be avoided. John Marshall said: “The power of judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, faith and confidence of the common man.” If judiciary loses the trust, faith and confidence of the common man, that will be the end of the Rule of Law and democracy. “Justice must not merely be done but must also be seen to be done.” Acceptance of post retirement job by retired judges, especially by accepting positions in executive or legislature certainly shakes the faith of people in the justice delivery system. This practice of post-retirement positions for judges clearly needs some attention and reforms are certainly required in order to protect the faith of people in judiciary.
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The Bangalore Principles of Judicial Conduct, UNODC (Mar. 27, 2020, 11:50 PM).
BJP for the “cooling Period” beforeJudges Head Tribunas, (Mar. 27,2020,12:10 AM)https://www.outlookindia.com/newswire/story/bjp-for-cooling-period-before-judges-head-tribunals/776850.
Rajesh Kumar Singh v. High Court of Judicature of M.P., (2007) 14 SCC 126.
R.V. Raveendran, How to be a Good Judge — Advice to New Judges, 9 SCC J-5, 2012.
Author Details: Nihal Deo and Mehar Kaur Arora (Gujarat National Law University, Gandhinagar)
The views of the author are personal only. (if any)