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The nomination of former Chief Justice of India Ranjan Gogoi as a member of the Rajya Sabha under Article 80(3) of the Constitution, whatever its legitimacy or justification, is another blow to the public perception of the independence of the judiciary.
Perhaps the most quoted phrase is that of Lord Hewart:
“.. it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”
R v. Sussex Justices, ex-parte McCarthy, (1924) 1 KB 256, 259
It is now necessary to paraphrase this extract as:
There is neither a constitutional bar nor is it against any law to appoint a former Chief Justice as the Governor of a State or a Member of Parliament. But what seriously undermines the image of the judiciary is the increasing perception of a culture of reward and punishment.
A judge who is perceived to have passed favourable judgments and towed the executive line gets rewarded, while others who have angered the establishment are transferred or not given what should legitimately be their due.
It is not correct to justify such rewards on the ground that there are precedents. One of our greatest judges, Chief Justice MC Chagla, was appointed by Pandit Nehru as Ambassador to the United States in July 1958, while he was the Chief Justice of the Bombay High Court. (Incidentally, Pandit Nehru appointed him despite his strong report against the Government in the LIC-Mundhra Scam).
This appointment was strongly criticized by MC Setalvad in his autobiography My Life: Law and Other Things. Chagla, deeply hurt, responded to this criticism in his autobiography Roses in December (Centenary Edition, p. 249-251) and pointed out that Lord Reading, who was the Chief Justice of England, had been appointed as Ambassador to the United States in 1914.
But those were different times, and no one perceived those appointments as affecting the independence of the judiciary. Till the death of Prime Minister Shastri, almost every recommendation of the Chief Justice to the post of a Supreme Court or High Court judge was accepted. It was only later, particularly after 1973, that a serious rift between the judiciary and the ruling party began.
Ever since, every government has tried to overpower the judiciary and treat the appointment of judges akin to the spoils system. Indeed, this eventually led to the creation of the Collegium system, which was felt necessary to preserve the independence of the judiciary.
On July 3, 2018, Justice Gogoi (before he became the CJI) delivered the 3rd Ramnath Goenka Memorial Lecture titled “The Vision of Justice”. I attended the lecture and Justice Gogoi spoke very well indeed. His words at the end are important and, sadly, ironic:
Fierce independence is the bedrock of justice. This institution is the last bastion of hope and the one that the citizenry believes firmly, will give justice to them, come what may. And it has. The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great Constitutional vision. It fills me with immense pride to see that as an institution, the judiciary has been endowed with great societal trust. This very fact gives it its credibility and this very credibility gives it its legitimacy. It is a very enviable spot for an institution. I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated. And, independent. And, fierce. And, at all times.” (emphasis added)
Former CJI Ranjan Gogoi
A few months earlier, Justice Gogoi, along with Justice Chelameswar, Justice Lokur and Justice Joseph, who formed the Collegium, held an unprecedented press conference to bring to the notice of the public what they perceived as a threat to the independence of the judiciary.
Justice Gogoi remarked that the press conference was called because they owed a “debt to the nation”. This bold step was taken against the manner in which sensitive cases were being assigned selectively to certain benches without any rational basis for such assignment.
In a recent interview, Justice Gogoi has justified his acceptance of the Rajya Sabha nomination because of his belief that “the legislature and judiciary must work together for nation building”.
This is the most dangerous thing that can happen and is completely contrary to the elementary principles of the separation of powers. No one can suggest that the US Supreme Court and Congress or the UK Supreme Court and the British Parliament must work “together” for nation-building.
Indeed, what is critical for nation-building is that each branch performs its constitutional role. As rightly pointed out by Alexander Hamilton in the Federalist No. 78:
“the judiciary is beyond comparison the weakest of the three departments of power … the general liberty of the people can never be endangered so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers”. And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.” (emphasis added)
It is sad that the last two years have been witness to a series of events that have done little to enhance the prestige of the Supreme Court of India. Field Marshal Slim famously said: “Leadership is example”. And the need to set an example must continue even after retirement.
The author is a Senior Advocate and practices in the Supreme Court