Et tu, Gogoi? Ex-CJI’s Rajya Sabha Seat Weakens Independence of SC

Nomination of the former CJI only four months after his retirement raises serious questions about quid pro quo.

Updated
Law
5 min read

Video Editor: Mohd Irshad Alam

Friends, Indians, country-people, lend me your ears.

I come to bury the idea of an independent judiciary, not to praise how independent our courts and judges were in the past.

The evil that the Supreme Court did during the Emergency lives on after those judges retired, a reminder of how easily Indira Gandhi bent the mighty court to her will.

The good principles like protection of fundamental rights, Rule of Law and separation of powers that the Constitution gave us, that the courts once upheld, have been interred by governments of every party, and by judges who have ignored propriety and the law.

So let it be with the idea of judicial independence.

The Hon’ble former Chief Justice of India Ranjan Gogoi was nominated to be a member of Rajya Sabha by the President on Monday, 16 March.

The Hon'ble judge's defenders have told you this is not new, that former CJI Ranganath Misra became a Rajya Sabha MP in 1998 as a Congress candidate.

That former Supreme Court judge Baharul Islam resigned from the court to become a Rajya Sabha MP in 1983 after giving a favourable judgment to a Congress CM.

These are true. And they were grievous faults.

And grievously has the independence of India's judiciary been damaged by these incidents.

After all, as former BJP Union Minister and legal luminary Arun Jaitley said in 2012,

“There are two kinds of judges – those who know the law and those who know the Law Minister... Pre-retirement judgments are influenced by post-retirement jobs.”

What was wrong then can surely not be considered right now, can it?

Here, with all due respect to ex-CJI Ranjan Gogoi and the rest of the judges of the Supreme Court –

For Ranjan Gogoi is an honourable man;

So are they all, all honourable men (pretty much, given how few women judges we have in the SC);

Come I to speak at the funeral of the idea of an independent judiciary.

An independent judiciary would have not let the Alok Verma case drag on for months till the former CBI director had to retire and therefore render the court's verdict meaningless.

But CJI Gogoi did.

And Ranjan Gogoi is an honourable man.

An independent judiciary would have urgently heard the cases on restrictions in Kashmir and the habeas corpus petitions of prisoners detained after the abrogation of Article 370.

Would have interrogated the actions of the government, assessed whether the law was being followed, ensured fundamental rights were not being violated.

Does such an idea seem ambitious?

When a judiciary is independent, it is concerned about the civil liberties of individuals, it doesn't ask detained political prisoners why they want to move around in the cold in Srinagar.

An independent judiciary should be made of sterner stuff than a willingness to accept any and every bit of unverified, unsigned and misleading information from the government in a sealed cover, like in the Rafale case.

But CJI Gogoi found nothing wrong with sealed covers. CJI Gogoi said he had to hear the Ayodhya case and thus, had no time to deal with Kashmir, and that habeas corpus petitions could be addressed by “allowing” friends of prisoners to visit them.

And Ranjan Gogoi is an honourable man.

You all did see when the former CJI was accused of sexual harassment, who also claimed her and her family’s victimisation afterward:

  • He convened a special hearing of the Supreme Court to claim that the allegations were a conspiracy and a plot to undermine the judiciary, where the government’s senior law officers Attorney General KK Venugopal and Solicitor General Tushar Mehta came and supported him without any evidence.
  • He made accusations about the character of the woman who accused him, and cited a criminal case against her that has since been dropped and appears to have been filed as a sham.
  • He removed his name from the record of proceedings surreptitiously.
  • He then set up a new bench to look into his claims that the sexual harassment allegations against him were a threat to the independence of the judiciary, even before a Supreme Court in-house committee was set up to probe the allegations.

An independent judiciary would never have allowed the judge accused of sexual harassment to use the court as a forum to defend himself and smear his accuser.

Was it ambitious that we expected the highest court in the country and its highest office-bearer to proceed more fairly?

Yet, CJI Gogoi thought this was a witch-hunt;

And, sure, Ranjan Gogoi is an honourable man.

I speak not to disprove what CJI Gogoi spoke,

but here I am to speak what we do know.

  • We know that the in-house committee found there was no substance to the allegations of sexual harassment, and yet the woman was reinstated in her position at the court after several months by the new Chief Justice of India, who had headed that same committee.
  • We know that the report by retired Justice AK Patnaik after his inquiry into the allegations of a conspiracy to undermine CJI Gogoi was submitted in September 2019 and no action has been taken on it.
  • And we also know that the suo motu case instituted by CJI Gogoi to look into these claims – "In Re: Matter of Great Public Importance Touching Upon the Independence of Judiciary - mentioned by Shri Tushar Mehta, Solicitor General of India" – has not been heard for almost a year now.

You all did love the idea of an independent judiciary once, not without cause:

  • When it delivered tough orders in the 2G and coal scam cases.
  • When it created environmental protections and protected civil liberties in the 1980s.
  • When it delivered the Basic Structure judgment to protect the Constitution from dilution.

What cause stops you from recognising that whatever was left of even the idea of an independent judiciary has now been lost?

  • When a former Chief Justice of India is nominated to be a part of the Rajya Sabha just four months after he retired.
  • Just four months after allowing the building of Ram Mandir in Ayodhya – which the current dispensation has wanted for decades – despite saying the mosque there was illegally demolished.
  • Just months after refusing a probe in the Rafale case based on misleading information from the government in a sealed cover even after the fact this was misleading was made exceedingly clear.
  • Just months after he repeatedly failed to list the electoral bonds case after his weak interim order, despite its urgency and his own indication that it was to be taken up in the summer of 2019.
  • Just months after he had failed to stand up to the government over its rejection of his own recommendation to appoint Justice Akil Kureshi as Chief Justice of the Madhya Pradesh High Court.

O judgment! Actually, all the judgments not passed.

Like the Sabarimala review petition, which was referred to a larger bench even though CJI Gogoi found nothing wrong in law or fact with the original verdict.

Bear with me;

And we must all pause till something is done to stop these kind of post-retirement rewards and sinecures for judges, whether a ban or a cooling-off period, or else, as BJP Union Minister Nitin Gadkari said back in 2012,

“Government can directly or indirectly influence courts and the dream to have an independent and impartial judiciary would never actualise.”

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