Actions of the former CJI have stained the credibility of an independent judiciary
Former Chief Justice of India Ranjan Gogoi is well within his fundamental rights to do whatever he likes, though like any other Indian he must refrain from indulging in any illegal, anti-constitutional and unethical act. A conscientious legal luminary, Gogoi has come under severe criticism from his own legal fraternity for accepting the offer of a Rajya Sabha seat from the Modi government. Technically he has been appointed by the President but at the recommendation of the Modi government.
It is not only the legal circle that is astonished by this outcome, the nomination has not been well received by the common people, the media and of course by the intellectuals. While the legal fraternity has been exercising too much caution in expressing their view, the common people are unwilling to come out openly for fear of contempt of court.
Now, Gogoi has joined the rank of the mortals of politics, it makes it imperative that the veil of contempt must be pulled down. The people must feel free in expressing their views on what is happening in the judiciary and how the judicial deities are turning into common earthly figures.
Gogoi will speak out his mind over accepting nomination to Rajya Sabha after taking oath. He would have done a great service to his profession where he would still be acknowledged with Lordship, to speak out before accepting the offer. A similarity is now being drawn between appointments of former CJI Rangnath Mishra to the Rajya Sabha by the Congress in July 1998, almost seven years after stepping down as CJI in late 1991. In between, he had served as chairman of the National Human Rights Commission and then joined the Congress. There is, nevertheless, one fine difference between the two. Mishra was elected, not nominated, to the Upper House.
Gogoi is being appointed within three months of his retirement by the BJP government and Mishra had contested the election as a Congress candidate after seven years of his retirement.
Some BJP leaders do not find fault with Gogoi's appointment and it, according to them, does not have an element of ethics and morality. In order to justify their argument, they cite the case of former CJI M Hidayatullah when he was elected as the Vice-President of India. This ignores the fact that this was something that happened almost nine years after his retirement from the Supreme Court in 1970 when he became the unanimous Vice-President choice He was not appointed by any party.
Reacting sharply to the nomination of Gogoi as a Rajya Sabha member by the government, his former colleague Justice (retired) Madan B Lokur has observed, "There has been speculation for some time now about what honorific would Justice Gogoi get. So, in that sense, the nomination is not surprising but what is surprising is that it came so soon. This redefines the independence, impartiality and integrity of the judiciary. Has the last bastion fallen?" This has to be answered by Gogoi.
In January 2018, Justices Gogoi, Lokur, J Chelameswar and Kurian Joseph, the most senior judges in the Supreme Court, in an unprecedented step, called a press conference to question the conduct of then CJI Dipak Misra, especially on the allocation of important cases. The press conference raised questions that brought the relationship between the Government and the Chief Justice's office into sharp focus. It is worth mentioning that after this incident, his brother judges, both Justices Joseph and Chelameswar had categorically stated that they would not accept any position by the government post-retirement.
At that point of time, Gogoi's action was perceived as a move to cleanse the stable and as an act of insistence on transparency and probity in the judiciary. In fact, this incident had projected him as a judicial hero in the eyes of the common people and intellectuals. Obviously they were expecting the same from him after he became the CJI.
Unfortunately, this did not happen. His handling of the Ram Mandir issue and NRC turned people skeptical. He had headed the Supreme Court benches that awarded the disputed Ayodhya site to Hindus to build a Ram temple and declined a plea to probe the Rafale fighter plane deal. He had also publicly defended the exercise for the National Register of Citizens in Assam. Never before in Indian history has a former CJI been nominated to the Upper House just months after retiring. Gogoi retired in November last year, days after the Ayodhya verdict.
Incidentally, all three verdicts were perceived as a manifestation of his political inclination. Now, in the wake of his nomination, these issues are being raised. The situation has drifted further with the case of another SC judge Arun Mishra openly praising the PM as a versatile genius. These developments made some senior lawyers and politicians speak against the top judge.
"It took a while for what was implicit to become evident but the independent judiciary is now officially dead," Sanjay Hegde, senior Supreme Court advocate, who went on to say, "He has not been just to his own judicial record. Now he has also imperilled the independence and impartiality of fellow judges who sat with him."
The president of the Supreme Court Bar Association, Dushyant Dave, referred to the sexual harassment charge levelled against Justice Gogoi by an apex court employee. He also observed, "It (the Rajya Sabha nomination) is clearly political. It shows how the judiciary is being undermined. It's clear evidence of the absence of judicial independence."
True enough, the brazenness of the appointment has taken many by surprise. The PM had earlier made similar moves. Former Chief Justice of India, P Sathasivam was appointed Kerala governor in September 2014 after his retirement in April the same year.
Often the BJP cites the wrongdoings of the previous Congress governments to justify their immoral acts. A wrong cannot be the instrument to justify another wrong.
The tweet of the top lawyer Abhishek Singhvi ought to be read carefully, "The Supreme Court, as indeed all courts, function on faith, trust and perception. Each has taken a bad beating today. It is not about Ranjan Gogoi. Much larger and much more vital concept of independence of the judiciary (are involved). The NDA has infamous glory & distinction of two former Chief Justices of India — Gogoi and Justice P Sathasivam's appointment."
In fact, some legal luminaries had suggested to Gogoi that he should say no to the appointment. These persons, including some intellectuals, academics and even politicians like former Union minister Yashwant Sinha had tweeted, "I hope ex-CJI Ranjan Gogoi would have the good sense to say 'NO' to the offer of the Rajya Sabha seat to him. Otherwise, he will cause incalculable damage to the reputation of the judiciary."
Former BJP chief and Union minister Nitin Gadkari had also suggested that "after retirement, there should be a gap (before the appointment), otherwise, the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise".
Views expressed are strictly personal