Millennium Post

Dangerous precedence

Dangerous precedence

On Monday, the Union Home Ministry notified the nomination of former Chief Justice of India Ranjan Gogoi to the Rajya Sabha by the President. The step came in the wake of the vacancy created due to the retirement of KTS Tulsi at the end of February. While filling the vacancy was inevitable, the preference shown with respect to given circumstances is uncanny. Gogoi is not the first ex-Chief Justice of India to be nominated to Rajya Sabha; former Chief Justice Ranganath Misra was nominated in 1998. Still, Gogoi's nomination blurs the Doctrine of Separation of Powers that the Constitution of India itself mandates. Both the timing of his nomination, as well as his notable pro-government judgments during his tenure feed the apprehension that Gogoi's nomination is perhaps an elated government's pleasure. Rafale clean chit, historic Ayodhya verdict, etc., events under Gogoi's watch have faced strong criticism for being inclined in Centre's favour. Not even Ranganath Misra's nomination to Rajya Sabha was as expedited as Gogoi's. And, Ranganath's nomination, though also criticised for being politically motivated, came eight years after his retirement, that too by a Congress sitting in opposition. Gogoi's expedited nomination, in the light of this fact, does seem curious though completely valid. Ironically, it was Gogoi who, in 2018 during a hearing, had remarked that post-retirement jobs for judges are a scar on the idea of judicial independence. His assertion of the fact was simply to point out how political influence over the judiciary can jeopardise the latter's independence. With Gogoi's nomination for a post-retirement job, and that too in a span of three months, his bold declaration takes a back seat. The evident hypocrisy, however, is not all. Gogoi's nomination following his criticised pro-government tenure also sends out a dangerous message of post-retirement laud for the serving judges. Justice Arun Mishra's public praise of the prime minister at a public forum in February in this context sparks striking relevance while setting an unfortunate remark for the country's judicial independence. Not that Justice Mishra is not allowed to speak his mind or express at will about his prime minister but the position and situation in which he praised the prime minister do not fit the moral bill. However weak in strength, the argument of executive machinery enticing the judiciary through such political appointments does blare alarms over the independence of the judiciary. Gogoi is not the first in the judicial hierarchy to be obliged by the Modi government. Back in 2014, the Modi government had appointed ex-Chief Justice P Sathasivam as the Governor of Kerala. Two instances do not make the norm. But they definitely point towards 'odd' steps with connotations of favouritism based on political whims.

The rising political influence over its independence is exactly what the judiciary must essentially counter. The 99th Constitutional Amendment Act of 2014 had brought the National Judicial Appointments Commission into force with the aim of replacing the collegium system for appointment of judges. NJAC Act would have been responsible for the appointment and transfer of judges to the higher judiciary in India if it had survived the judicial review. But in a 4:1 majority, the Constitutional Bench in October 2015 struck down the NJAC Act as unconstitutional. The Supreme Court had defended the independence of the judiciary, ruling out Parliament's legislation. It is the Supreme Court itself which can curb these political designs that implicitly attack the independence of the judiciary. An independent judiciary holds our democratic polity together. Undue political influence was well recognised by our Constituent Assembly that discussed and installed a synthesis of the British system of Parliamentary Sovereignty and the American system of Judicial Supremacy. The founding fathers of the Constitution were wary of the perils of powers in one hand and hence meticulously divided the powers with a system of checks and balances in place. Gogoi's nomination, howsoever justified, impinges the independence of the judiciary. Given how the judiciary plays the pivotal role of checking state excesses on its own citizens, former's independence from the latter's influence requires no justification.

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