Gogoi’s new run

by March 19, 2020 0 comments

The former CJI’s nomination to RS is not surprising but raises questions on propriety and independence of judiciary

Ostensibly, there is nothing technically wrong with ex-Chief Justice Ranjan Gogoi accepting a presidential nomination to become a Rajya Sabha member. Given his extensive domain knowledge and experience of the law, he does qualify to be a notable who can contribute valuably to the Upper House. He is, in the end, somebody who has excelled in society in his chosen field. There’s no shortcoming there. Also, he is not the first retired Chief Justice to have benefitted from the executive’s munificence; there have been others propped up by several regimes before him as a reward for services that were “friendly” to them. If whataboutery is the logic, he can quote precedence. And we know he knows his law. There’s enough counter-logic going around as to how Justice S Fazl Ali was the first Supreme Court judge to be made Orissa Governor in 1952 and was the beginning of the Congress’ endorsements of judicial luminaries that continued till the party was in power. From Assam itself, there’s the example of Justice Baharul Islam, who began as an advocate in the Assam High Court in the early 1950s and went on to serve a decade-long term as Rajya Sabha member. As far as controversial rulings go, then the Congress suitably accommodated former Chief Justice Ranganath Misra, who gave a clean chit to the Rajiv Gandhi-led Congress in the 1984 anti-Sikh riots case. After his retirement, he was made the first chairman of the National Human Rights Commission and was even elected to the Rajya Sabha on a Congress ticket in 1998. The examples are so many that at one time, there was much debate over how judges should not be encouraged to take up the offer of the Government’s post-retirement benefits, like heading commissions of inquiry, simply because that could cloud their impartial judgments and colour their opinions in sensitive cases. Why then is there such deep discomfort about Gogoi’s induction in the Rajya Sabha, that, too, in a position that is much lower than the Chief Justice of India? Is it because of the immediacy of the appointment, barely allowing for a cooling off period, one that would not have led to deductions that he was being rewarded for favourable judgments, be it in Rafale or Ayodhya? Or is it because of a lack of pretence and propriety in the face of the ruling BJP’s brazenness in protecting its favourites?

Yet nobody is holding the party to account simply because it is doing what the Congress did for so long. But there’s much criticism of Gogoi because he was at one time considered a “rebel” judge and, therefore, now looks like a test case of how the institution of the executive superseded that of the judiciary and a one-time warrior appeared to have fallen in line. Remember the time when Gogoi — then the seniormost after the then Chief Justice Dipak Misra – held a press conference in January 2018 to express concern over the arbitrary manner in which Misra was running the top court? He had specifically made a reference to the selective allocation of sensitive files. Therefore, there was a sense of expectation built around him, one of them being that he would ensure the independence of the judiciary. There was faith he would not be coopted by an executive that was backed by a mammoth electoral verdict and could heave upon reasoned judgment calls as not being in sync with the times. Subsequent judgments have replaced the crusader halo with a shadow. For somebody who spoke against the roster system of his predecessor, he was seen as ensuring the Government line held ground in most politically-sensitive cases. Perhaps, Gogoi could have got some of his old glow back had he refused such an offer, knowing full well that he was landing himself in another controversy. Nobody better than him knows that Rajya Sabha nominations are quid pro quo for services rendered to the regime of the day. He perhaps could have waited to take up some national-level commission instead and not seemed so desperate. But Gogoi justified his acceptance saying, “It would be an opportunity to project the views of the judiciary before the legislature and vice versa.” He could argue that this being a presidential nomination, he was, again technically speaking, independent of political affiliations and could act as the “conscience keeper” of the nation. Perhaps, he wants to retrospectively decide to be true to his oath and “bear true faith and allegiance to the Constitution” and perform duties “without fear or favour.” Only time will tell whether he scores a moral victory by trying to fight the challenging circumstances of politically charged times as a respected citizen of India. Or whether we are judging him too harshly for eroding an institution.

(Courtesy: The Pioneer)

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