Much ado about Gogoi

by March 25, 2020 0 comments

There are many other judges who retired from the Bench and who later took up political postings offered by the parties in power

Ranjan Gogoi, the newly sworn-in member of the Rajya Sabha, is the cynosure of all eyes as well as the favourite whipping boy, at the moment, depending on which side of the fence people are on.

His critics say that the decision of the former Chief Justice of India (CJI) to accept the nomination to the House of Elders by the President of India is an act against all ethics mentioned in the Constitution of India. Since this writer is no authority on the Constitution, let the experts discuss the issue and quote the relevant portions from the Indian Constitution which show beyond doubt that Gogoi has cocked a snook at the founding fathers’ vision.

Those who support Gogoi point out that there were instances of retired judges of the Supreme Court getting nominated to the Rajya Sabha in the past and there is nothing “official” about the former’s decision to take up the offer of the Government of India.

Given Gogoi’s extensive knowledge and experience of the law, he does qualify to be a notable who can contribute valuably to the Upper House. Also, he is not the first retired Chief Justice to have benefitted from the executive’s generosity. There have been others like him who have propped up by several regimes as a reward for services that were “friendly” to them. 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 (NHRC) and was even elected to the Upper House 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.

One wonders, why then is there such discomfort over Gogoi’s induction in the Rajya Sabha? Is it that 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? For the uninitiated, Justice Gogoi and three of his brother judges shot into national prominence on January 18, 2018, when they staged a press conference in the national Capital, which was described as extraordinary by the “pundits” in the media. The judges cautioned the nation by giving “advance information” about the threat faced by the nation and the judiciary.  Gogoi 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. The four senior-most judges of the apex court led by Gogoi warned that democracy was in peril. “Unless this institution of the Supreme Court is preserved, democracy will not survive in this country,” warned J Chelameswar, a colleague of Gogoi, during the press meet, who, too, has retired.

I remember many Opposition leaders waxing eloquent on the four judges who held the extraordinary press conference. Immediately after the meet, a Left leader went to the residence of Chelameswar (through the back entrance).

Nothing discernible happened after this extraordinary washing of dirty linen in public. The then Chief Justice of India Dipak Misra retired on October 2, 2018, and Ranjan Gogoi was sworn in as the new Chief Justice. The rebel judges or the “young Turks” of the Supreme Court retired one by one and all are living happily ever since.

People living in South India are not fortunate enough to get the latest news on the “palace intrigues” taking place in the power corridors in New Delhi. Gogoi retired on November 17, 2019 and Sharad Bobde was sworn in as the new Chief Justice of the country. This is an ongoing process as the judiciary, too, works on the principle “me today, you tomorrow.” Justice Bobde, too, would be retiring once he reaches the magical figure of 65, the age for superannuation.

The issue is whether the former Chief Justice of India was right in accepting the Rajya Sabha nomination offered by the President of India so soon after his retirement. Well, there are no records to show that Gogoi was even remotely connected with any political party till the day he retired from service. He is the son of KC Gogoi, former Chief Minister of Assam who was a Congress leader. Ranjan Gogoi’s career at the Bench began in 2001 when he was appointed as a judge of the Guwahati High Court in 2001 and culminated with his appointment as the country’s 46th Chief Justice in 2018. But there were many legal wizards in the Supreme Court who had stints in politics before their elevation to the Bench and till this day one is yet to hear about the ethics practiced by these gentlemen.

VR Krishna Iyer, a noted judge who became a pioneer of judicial activism in India and has ever since been eulogised for his concerns for human rights and the poor, was appointed as a judge of the Kerala High Court in 1968. Before entering the precincts of the judiciary, Iyer was a full-fledged politician, a Communist to be precise. He was the Home Minister in the EMS Namboodiripad-led Communist Government of 1957, which was dismissed by Jawaharlal Nehru following the liberation struggle waged by the Congress in association with the powerful Church and the Muslim community. It was during the tenure of Iyer as Home Minister that Kerala saw the first-ever police firing on cashew company workers agitating for their rights.

Iyer, who was defeated in the next Assembly election, was elevated to the Bench in 1968 at the instance of Namboodiripad. This has been mentioned by Iyer himself in his autobiography Wandering in Many Worlds (Longman Pearson 2009). “EMS Namboodiripad sent his Cabinet colleague, Gouriamma, to persuade me to accept the offer. She pleaded that State power was a necessary tool for transformation of India into a socialist republic. She pressed home this point and left,” writes Iyer on page 159. The book hit the shelves across the nation in 2009 and Gauriamma is yet to react to what Iyer has written.

The Communists and the Congress were hands in glove, though it was invisible to most. Iyer’s was not a one-off inclusion of a professional politician into the Bench. We have the case of Kurian Joseph, who as a student of  the Sree Sankara College, Kalady was the leader of the student wing of the Kerala Congress (Mani), and had the backing of the party all through his career. He was one of the judges who took part in the “extraordinary press meet” along with Gogoi to warn the nation that democracy was in danger.

Joseph has reportedly said that Gogoi compromised the noble principles of the independence and impartiality of the judiciary by accepting the nomination to be a MP.  “According to me, the acceptance of nomination as member of Rajya Sabha by a former CJI has certainly shaken the confidence of the common man on the independence of the judiciary, which is also one of the basic structures of the Constitution of India,” Joseph has been quoted as saying.

Let’s accept what Joseph has said about Gogoi, but we have had many judges and Chief Justices in the past, who, had no hesitation in accepting the crumbs thrown at them post-retirement. Joseph’s predecessor from Kerala, KG Balakrishnan, had no qualms in accepting the post of the Chairman of the NHRC. There are many judges who retired from the Bench who later took up political postings offered by the parties in power. HR Gokhale, Baharul Islam are just some of the names that come to the mind. We cannot expect every judge to be like MN Venkatachaliah and SH Kapadia, synonyms for justice and propriety.

(Writer: Kumar Chellappan; Courtesy: The Pioneer)

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