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The acceptance of a governmental post by a former Chief Justice has been done in the past, since 1960.
The nomination of the former Chief Justice of India, Mr. Ranjan Gogoi, as a member of Rajya Sabha has led to a controversy mainly centering around two facets; namely (i) denigration of the independence of judiciary and its reputation and (ii) compromising the principle of separation of powers amongst the three organs of the State.
That apart, nomination of Justice Gogoi is also questioned on personal grounds of favoritism etc. This write up is intended to headlight on the two facets set out above from the legal and constitutional perceptive and historical paradigm.
One of the major issues that was considered by the Constituent Assembly during its numerous debates and discussions, was the need for a Second Chamber for the Indian Parliament namely, the Rajya Sabha. The role of the Rajya Sabha as a body was one of the points for discussion. In this respect, Shri Gopalaswami Ayyangar observed:
“…The most that we expect the Second Chamber to do is perhaps to hold dignified debates on important issues and to delay legislation which might be the outcome of passions of the moment until the passions have subsided and calm consideration could be bestowed on the measures which will be before the Legislature…. we also give an opportunity, perhaps to seasoned people who may not be in the thickest of political fray, but who might be willing to participate in the debate with an amount of learning and importance which we do not ordinarily associate with a House of the People…”
Similarly, Shri Mohammed Hamid Ansari pointed out that one of the objectives of the Rajya Sabha is to act “as a deliberative chamber where greater and diverse experience is brought to bear on questions of significance.”
For top-notch discussions to take place, there is a need for the Rajya Sabha to be comprised of eminent and illustrious personalities, who are at the forefront of their respective fields and who can provide sui generis and well-read opinions regarding the issues at hand. At this juncture, the readers may appreciate Dr. S. Radhakrishnan’s observations during the Constituent Assembly debates, extracted below;
“Parliament is not only a legislative but also a deliberative body. So far as its deliberative functions are concerned, it will be open to us to make very valuable contributions, and it will depend on our work whether we justify this two Chamber system, which is now an integral part of our Constitution. So, it is a test to which we are submitted.”
Similarly, Dr. Shanker Dayal Sharma observed;
“Rajya Sabha as a deliberative body can bring to every issue an outlook of mature, dispassionate and sensitive contemplation in consonance with the lofty idealism of the stalwarts in our nation’s history. The House thus has a vital responsibility to fulfil vis-a-vis the past, the present and the future.”
It is in this background that Article 80 (1) (a) of the Constitution of India, 1950 (“the Constitution”) postulates the nomination of 12 members by the President of India to the Council of States (Rajya Sabha) and those persons under Article 80(3) of the Constitution are to be persons having special knowledge or practical experience in respect of such matters as the following, namely; literature, science, art and social service.
It cannot be disputed that a former Chief Justice of India who has been a judge for about 15 years fits the description eminently.
There are several instances in the past where former Chief Justices have accepted a government post immediately after their retirement from the Supreme Court.
Justice Koka Subba Rao, the 9th Chief Justice of India, retired from the post of the Chief Justice of India on 11 April 1967 and immediately thereafter, contested for the post of the President of India in 1967 as a candidate of the united opposition parties and lost the elections to Zakir Hussain.
Justice K.S. Hegde, Judge Supreme Court of India, resigned from the post on 30th April 1973 and was thereafter elected to the Lok Sabha from the Bangalore South constituency on a Janata Party ticket in the year 1977 and several months later, he became the Speaker of the Lok Sabha after the resignation of his predecessor, Neelam Sanjiva Reddy.
Justice Dalveer Bhandari, Judge Supreme Court of India, retired from his post of on 27 April 2012 and was thereafter nominated by the Government of India as its official candidate for the post of member at International Court of Justice in January 2012 (even before his retirement). He won the elections and was sworn in as a member of the International Court of Justice on 19 June 2012. Justice Bhandari is still continuing to hold the said position.
Justice K.G. Balakrishnan, the 37th Chief Justice of India, retired from the post of the Chief Justice of India on 12 May 2010 and was appointed as the chairman of the National Human Rights Commission shortly thereafter, on 7 June 2010.
Justice S. Rajendra Babu, the 34th Chief Justice of India, retired from the post of Chief Justice of India on 1 June 2004 and was appointed as the chairman of the National Human Rights Commission on 2 April 2007.
Justice HL Dattu, the 42nd Chief Justice of India, who retired from the post of the Chief Justice of India on 2 December 2015, was appointed as the Chairman of the National Human Rights Commission in February 2016. He is serving as the Chairman of the Commission as on date.
These are but some of the instances wherein former Chief Justices/Justices have accepted a government post almost immediately after their retirement from the Bench.
In fact, several laws of the Country (India) provide for appointment to several positions, being a judge or a chief justice of a Higher Court as one of qualifications.
Therefore, to say that a mere acceptance of a post retirement position by a former judge of a Superior Court is denigration of independent judiciary, is against the mandate of the law and the Constitution.
The only prohibition postulated by the Constitution against retired judges are those contained in Article 124 (7) vis-à-vis a judge of the Supreme Court and Article 220 vis-à-vis a permanent judge of the High Court.
There have been no allegations with respect to these appointments, despite the fact that they were also occupying the same position as Justice Gogoi, i.e., being a member of the Supreme Court.
Was independence of judiciary compromised in all these occasions?
Too much to claim with too little in substance. All of them were no doubt, men of merit and brought credit to the Supreme Court and the Indian Judiciary.
Solely looking at the prior practice of former judges and the Government in this respect in the past, there is absolutely nothing wrong, in the present nomination of Justice Gogoi as the member of the Rajya Sabha. There is no bar under the law for such a nomination. There appears to be no basis for the criticism against Justice Gogoi’s appointment.
Justice Gogoi served as the 46th Chief Justice of India from 3 October, 2018, to 17 November, 2019.
During the said tenure of approximately 13 months, he passed several landmark judgments, including:
A unanimous judgment of a five-judge bench of the Supreme Court headed by him on 09 November 2019 that brought to an end, the long drawn out Ayodhya land dispute, (dating back to 1950, i.e., even before the Supreme Court of India came into existence!)
By a majority 3:2 verdict, the Court headed by him, referred the petitions seeking review of the Supreme Court's historic 2018 judgement allowing women and girls of all ages to enter Kerala's Sabarimala temple to a larger 9-judge bench;;
A unanimous judgment of a 5-judge Constitution bench of the Supreme Court, which struck down the rules formulated by the Centre regarding the appointment and service conditions for members of various tribunals under Section 184 of the Finance Act, 2017. The said bench also referred the question of Money Bill, as defined under Article 110(1) of the Constitution, and the certification accorded by the Speaker of the Lok Sabha in respect of Part-XIV of the Finance Act, 2017, to a larger bench of the Supreme Court;
A unanimous judgment of a three-judge bench, which rightly refused to interfere in the Government’s decision to buy 36 Rafale jet fighters for the Indian Air Force, after duly conducting detailed hearings in the said matter; and
unanimous judgment of a three-judge bench which rejected the review petitions filed against the judgment of the Supreme Court in the purchase of Rafale jet fighters. However, notably, the said judgment was not authored by Justice Gogoi.
A thorough perusal of the above mentioned judgments will discernibly indicate that there is not even an iota of bias in favour of any particular political party.
The judgements place heavy reliance on the evidence before the court, logic, legal reasoning and weightage to judicial precedents. Moreover, these judgments have been passed unanimously/by a majority of the judges hearing the case.
Therefore, levelling allegations of partiality in favour of a particular political party solely against Justice Gogoi strikes the authors as illogical and unjustified. (a clear case of public bias!).
Therefore, while one may have a differential opinion on judgement itself, it is our belief that there is no evidence warranting smearing of Justice Gogoi’s name and reputation.
Continuing to level such unwarranted and unsubstantiated allegations against a former Chief Justice of India certainly undermine the legitimacy of the judiciary and the institution as a whole, both within the Country and outside – being clearly counter-productive to the profess object of the critics.
About the authors: Senior Advocate KG Raghavan and Advocate Hitesh Singhvi are lawyers practicing in the Karnataka High Court.
Views expressed in the article are personal and do no necessarily reflect the views of Bar & Bench.