“Post-retirement appointment is itself a scar on the judicial independence of the judiciary, “says Justice Ranjan Gogoi, who is an Indian Jurist, who served as the 46th Chief Justice of India for 13 months between 2018 and 2019. He is more popularly known for his opinion in the Ayodhya case, which ruled that the construction of Ram Temple over the historically disputed land in Ayodhya was lawful. He was nominated by the president, Ramnath Govind on 16th March 2020, to the Rajya Sabha and he is the third Supreme Chief Justice of India to serve in the Rajya Sabha. He is also a part of Indian National Congress and so, his appointment amounts to another Lakshman Rekha about independence and integrity of the judiciary.
The research work done in this article is a doctrine in nature and it is subjective. This research incorporates all the legal sections and articles in Indian law, which is against the appointment of Ranjan Gogoi as a member of Rajya Sabha. The primary source of information for this article was collected from the Times of India, The Hindu, many news channels and other media sources. So, the following points were interpreted while the author was writing the paper,
- His contributions during his tenure as the Chief Justice was very immense, and had handled a lot of sensitive cases, like the Babri Majid Case, resulting in a twisted verdict in favour of government’s Hindutva allies,
- Being the Napoleonic general in Supreme court for National Registrar of Citizenship(NCR), he has also paved way for the Citizenship Amendment Act(CAA) and helped the Central Bureau of Investigation(CBI)crisis for Karnataka,
- He gave way for the return of suppressed Bangladeshis Muslims to Bangladesh, and finally diffused the Kashmir crisis, and so the author hence says that all these points should be considered while talking about the controversies during the appointment.
- And, therefore the author from noting the above points concludes that no other CJI could ever do anything more than this for the government in power.
THE ACTUAL CASE
A writ petition was filed under article 32 of the constitution against the state and its functionaries for protecting the independence of the judiciary, which is a part of the basic structure of the constitution of India. An important statement to be noted in this case is that “Judges are constitutional servants, and not government servant’s”. The petitioners clearly state that she had no personal gain/interest/ personal motive in filing the case.
The facts of the case are that the Chief Justice Of India Ranjan Gogoi became the member of Rajya Sabha on 16th March 2020 as the appointment comprises independence and credibility of the judiciary at high levels. So, a credibility doubt in judgements given in Supreme Court is created when he is appointed as Rajya Sabha member. This is all about the writ petition and the main doubt is if his nomination was done as a reward of “favours” done by the government, as he supported the government in several cases.
GROUNDS ON WHICH HIS APPOINTMENT IS NOT JUSTIFIABLE
Union Minister Arun Jaitley says that the desire to post-retirement job influences pre-retirement judgements. The appointment first and foremost amounts to an assault of independence on the judiciary, being the basic structure of the constitution, and found that the strength of the judiciary lies on the faith of the citizens.
So, this appointment amounts further to an adverse impression on the judiciary. Similar cases arose such as the case of Justice Bahrul Islam and Justice Rangnath Mishra leading to construction among informed citizens of India. The supreme court judges are always supposed to work without and away from political affiliation.
There is a “Break Up India” forces within the country to defame the judiciary of India, and this news is also now virtually receiving popular in National and International Media, paving way for enemies to come. Earlier, in a press conference, he demanded independence of the judiciary from the executive and other power statutes. But, now his cheerful and instant acceptance has led to a great disappointment of the public. Moreover, no provisions were even made on post-retirement as they were expected to conduct themselves in such a manner even after retirement.
LEGAL RESPONSES FOR APPOINTMENT
There should be a separation of judiciary and executives of each state, concerning the public services of the state, and so this appointment doesn’t separate both.
The comptroller and auditor general shall not be eligible for a further appointment either under the government of India or government of any other state after he has ceased to hold his office.
The chairman of Union Public Service Commission is ineligible to be appointed further under the Government of India or the Government of State.
On ceasing to hold office, the Central Vigilance Commissioner and every other vigilance commissioner shall not be eligible for further appointment.
On ceasing to hold office, the Chairperson and every other member are ineligible to reappointment / any other appointment/employment / even to contest any further election.
INDEPENDENCE OF JUDICIARY
Congress terms his appointment as “ serious, unprecedented and unpardonable assaults” as the basic structure of the constitution. Congress MP, Abhishek Manu Sanghvi says that “separation of power is a pillar of the country’s constitutional jurisprudence’’.The Congress Party of India Polit Bureau expresses its firm objection to Gogoi’s appointment by stating two things,
- The nomination of former Chief Justice has already put the credibility of the judicial system in the dock, and
- The recent delays in delivery of justice, midnight transfer of High Court judges, and delay in taking up the challenge of abrogation of Article 370 and Citizenship Amendment Act have not so far evoked confidence among people and are not in circumstance with the legitimate expectations.
- In 1952, Justice Fazil Ali was appointed as governor of Odisha after completing tenure as a judge of Supreme Court.
- In 1984, Chief Justice Ranganath Mishra was appointed as a member of Congress of Rajya Sabha.
- In 1963, Justice M.C.Chagla was the first Chief Justice of Bombay High Court, then as an Indian ambassador to the United States, Indian High Commission to the United Kingdom and then lastly, a member of Union Cabinet in 1963.
- In 1962, Justice Bahrul Islam was a member of Rajya Sabha, and then in 1972, he became the judge of Gauhati High Court, then he became the judge of Supreme Court. Lately, he became a member of Congress.
- Justice Hidayanatullah became the Vice president after nine years of retirement as Chief justice of India.
Gogoi appointed by the President under the Article 80, says that there must be 12 members to Rajya Sabha, who are eminent personalities and excelled in their respective fields and it’s evident that there is no way that he belongs to none of these categories. Father of Ranjan Gogoi, was Kasab Chandra Gogoi, with a good political background. But that doesn’t mean he will also be like that.
TYPES OF APPOINTMENT
There are three kinds of appointments,
- Judges who were eminent without political attachments and obligations are called “just appointments”,
- Judges honoured for their judicial work which is sync with the regime in power are called “gratitude appointments”, and
- Judges appointed to tribunals, who are expected to and do, decide according to government’s expectations, to and make a result of quasi-judicial / committee process, are called “instrumental appointments.”
In 2009, in a press meeting, he said “ there is a strong viewpoint that, after ceasing to hold office, they shouldn’t be eligible to public office, they shouldn’t be eligible to public office for five years. In the Gerona Lecture, 2019 he spoke the need of “uncontaminated”, “independent” and “free” judiciary.
SEPARATION OF POWERS
There is a matter of principle and programmatic.Though there is a separation, the judiciary and government should meet some time, for some reasons. A most important case is the appointment of judges. Some of the examples among them include,
- Though there is a collegium, there should be an interaction between the Chief justice Of India and law ministers who are at two different levels,
- Another case is when I had to seek the government’s permission, go approach the law minister and Prime Minister to travel with his wife, so this has interaction, and
- The fee collection of judiciary even goes only to the chief revenues.
GOGOI’S JUSTIFICATION FOR HIS APPOINTMENT
The reasons given by Gogoi are,
- The legislature and judiciary at the same point have to work together to give an independent voice in the Parliament,
- Chief Justice of India liked me, can get into the parliament only for “building the nation”,
- For nation-building, Gogoi has already contributed in his judicial office, and
- Even without joining the Bharata Janata Party, he can become an authoritative spokesman for Modi’s government.
The past status of judges should never be compromised / even flaunted in the eye of the public/ in the public domain. All appointments of government are done in consultation of Chief Justice only, who is himself looking for a post-retirement job, so this must be stopped. The cooling system is of no use, as it only delays “favour for favour “ system. There is always a question of judges and political office, which should be stopped.
So the suggestions given by Gogoi are, the statutes regarding the appointment of retired judges must be amended and the elections of such judges to public office can be done by a neutral transplant public system.
In the case of Justice Gogoi, he was appointed as a member of Rajya Sabha after four months of retirement, and there are suspicions about his appointment. In general, there must be two years gap between officials who retire from the sensitive position and for their re-appointment, and also it is time to check executive and legislature. Arun Jaitley says that there must be further a time gap, for future appointment after two years, as otherwise, the government can directly or indirectly influence the courts and dream to have an independent, impartial and fair judiciary in the country.
- Madhu Purnima Keshwar Vs Union Of India (2020)
- Article 80 of the Constitution Of India
- Pre-retirement judgements and post-retirement jobs, The Hindu, April 23, 2020
- Why Ranjan Gogoi’s appointment is wrong, The Times Of India, March 18, 2020
- Gogoi’s appointment doesn’t constitute to Rajya Sabha, Business Line, March 18, 2020
- Criticism regarding Ranjan Gogoi’s appointment, The Print, March 19, 2020
Article 50 of the Constitution of India
 Article 148 of the Constitution of India
 Article 319(a) of the Constitution of India
 Section 5(6) of the Central Vigilance Act, 2003
 Section 8 of the Lokpal and Lokayukta Act, 2013
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Katcheri.in.