While the coronavirus spread all over the world and entered India, resulting in a shutdown of public places and even the Supreme Court, former Chief Justice of India Ranjan Gogoi took his seat in the Rajya Sabha as a special nominee of the BJP-led NDA government.
There is always a mix of nominations to the Rajya Sabha between the ‘general’ and the especially politically ‘favoured’ ones. Twelve MPs are nominated to the upper house of parliament from a rarified category of people who have ‘special knowledge or practical experience in respect of … literature, science, art and social service”.
In reality, Justice Gogoi belongs to none of these categories, though in practice, this power has been exercised so randomly to cover so many fields over the years that its exercise has come to stand not for the recognition of excellence but for political patronage. And yet, it has never been used to appoint an ex-judge – let alone a former Chief Justice of India. To the present government belongs the credit of creating a new sinecure for a CJI.
The anti-defection law does not stipulate that a nominated member to the Rajya Sabha must belong to a political party, as he may have no formal political affiliation at the time of his nomination. However, if so inclined, a nominated MP must declare his or her affiliation within six months of nomination. Joining a party after the six months are over will render them disqualified under the Tenth Schedule.
Out of the 135 Rajya Sabha nominations from 1952, only 25 have joined a political party. Of the 12 nominated MPs today, eight are members of the BJP (Sambaji Chhatrapati, Roopa Ganguly, Suresh Gopi, Subramanian Swamy, Rakesh Sinha, Raghunath Mohapatra, Ram Shakaland and Sonal Mansingh), while three are unattached – Mary Kom, Narendra Jadhav, and Swapan Dasgupta, though Dasgupta is well known as a pro-BJP ideologue. The 12th is Gogoi, who will probably remain unattached but used as a legal voice to counter the strong Congress lawyer MPs in the Rajya Sabha, like P. Chidambaram, Kapil Sibal, A.M. Singhvi, Vivek Tankha, Ashwini Kumar and others.
Through his father, Kesab Chandra Gogoi, Ranjan Gogoi has a political background. Whether he will seek a political profile remains to be seen. If he does attempt to seek a ministerial berth, a constitutional question would certainly arise as to whether a nominated parliamentarian can be a minister. To date, such a situation has never arisen.
Of deals, hidden and open
When the news broke, the former BJP leader Yashwant Sinha urged Gogoi not to accept the nomination. This was naïve because it was already a done deal. But what was the deal and what is its possible basis? Some former judges have openly said that there has been a quid pro quo. The usual manifestation of a post retirement quid pro quo for judges is that they are given jobs such as chairmen or members of commissions, Lokpals and Lokayuktas, Press Councils, membership of government bodies, membership of tribunals etc. These are important posts with perks earmarked for judges, although the choice of whom to select is in the hands of the government.
In the 1960s, attorney general M.C. Setalvad bitterly complained that judges of the Supreme Court angled for these positions while they were in service. Today, a lot of retired judges find it more lucrative to decide arbitrations under the new arbitration law, though there are suspicions that the integrity of some of these judges and other arbitrators is questionable. But we are concerned here with three categories:
(a) Judges who were eminently without political attachments and obligations (i.e. “just” appointments)
(b) Judges appointed to tribunals like the environment tribunal who are expected to, and do, decide, according to the government’s expectations and are specially selected in that regard because of some erstwhile links with the appointing regime, although they totally lack any expertise in that area. These are politically “tainted” “instrumental” appointments to make sure of a result in a quasi-judicial or administrative or committee processes in favour of the regime.
(c) Judges who are honoured for the judicial work they did as judges which were in sync with the regime in power. These are ‘gratitude’ appointments or ‘reward’ or ‘thank you’ appointments. If you are looking for some sort of clear written or proved agreement on this, you will never find it and all this has to be discerned from the facts examined in good faith.
While in office, Justice Gogoi joined a famous press conference in January 2018 protesting the way the government was encroaching on the domain of the judiciary and the manner in which the then Chief Justice Misra was allocating cases as master of the roster. In 2019, he had an exchange with a lawyer in which he he espoused what he called a ‘a very strong viewpoint’ – that ‘after ceasing to hold office (as a Justice, they)… should not be eligible for public office for 5 years…post retirement”.
In his Goenka lecture in 2019 he spoke of the need for an ‘uncontaminated’ ‘independent’ and ‘free’ judiciary. Was he uncontaminated in office? Is this nomination uncontaminated? It is true that this is not an “appointment” to office like CJI Sathasivam’s appointment as governor of Kerala or Fazal Ali as governor of Assam in Nehru’s time or Shanti Swaroop Dhavan’s appointment as governor of West Bengal under Indira Gandhi. But it would be a stretch to say that a nomination to the Rajya Sabha is not a post retirement perk for someone who had all but promised to return to the happiness of his home state where special arrangements were made for him to stay there.
If this is indeed a ‘thank you appointment’, the government has much cause to be grateful. Gogoi was their ‘Napoleonic’ general in the Supreme Court for effecting the National Register of Citizens (NRC) process in Assam. The ruthlessness with which this was done in court is only apparent to those who actually witnessed him brow beating officials and lawyers in court. He paved the way for a return of supposed Bangladeshi Muslims to Bangladesh which does not want them. He kept Rohingya issues in abeyance to be engulfed by this initiative. In essence, he paved the way for the Citizenship (Amendment) Act.
He also helped Hindutva through the Babri case by dramatic, speedy proceedings that resulted in a twisted verdict in favour of the government’s Hindutva allies. But, most important of all, he helped the government to pack the Supreme Court with those whom the ruling establishment wanted. This is equally true of the transfer of high court judges. The high courts were also packed with government favoured appointees. The ‘saffronisation’ of the higher and lower judiciary is yet to be estimated.
In addition, he helped the government through the Central Bureau of Investigation (CBI) crisis and, of course, the Karnataka crisis where he ate out of the hands of pro-government lawyers. By sitting on key petitions, he entirely diffused the Kashmir crisis. At every twist and turn, he passed on important cases to selected favourite Supreme Court judges, overlooking his own January 2018 protest in this regard when he was a junior (puisne) judge in the Supreme Court. No CJI could have done more for the government in power – not even when compared with judges appointed by the Congress who helped them before, through and after the Emergency.
Suitability as a judge-jurist
Despite all this, it is worth examining whether he is the kind of judge jurist who normatively had the credentials for a special nomination to the Rajya Sabha for public interest reasons. To those practising before him, it never took long to realise that he was abrupt, rude, dictatorial, that he did not read the real case before him with care as the best judges do, that he had at best a run-along knowledge of case and statute law and decided matters on short points of his own making. He made his own rules on who would argue and listened to catch a point rather than focus on the intricacies and the wisdom of the law. If his judgments and orders are parsed carefully, nothing profound would come out of them.
No one really wants to go back to when he issued notice to his former colleague, Justice Markandey Katju, for criticising his judgment as undergraduate-ish. Lord Denning, when faced with criticism from Quintin Hogg (later Lord Chancellor), only said: “Remember we cannot answer back” and certainly did not use the law of contempt against Hogg. I was Katju’s counsel and we decided not to press free speech arguments because we knew that Justice Gogoi’s vanity would side step the principles of free speech in this case, and it was better to apologise.
Significantly, he would have sat on the bench to hear the Katju contempt case in his own cause. This is actually true of the sexual harassment bench where he constituted a bench himself on a Saturday and continued to sit on it while the bench deliberated on the issue. In another case, two judges recused from hearing a case concerning the take over a ‘council’ of which Gogoi was the chairman of a committee and they were members. But he heard the case against all norms of judicial propriety.
In the sexual harassment case, it is now tolerably clear that the government helped him, including from criminal proceedings. These facts and opinions are being reiterated to test his suitability to be nominated to the Rajya Sabha. In fact, on these facts alone, he should have been impeached before the very Rajya Sabha to which he is nominated. But after the impeachment imbroglio of CJI Dipak Misra, it seemed that any motion might have been quashed by the BJP-linked vice-president just as he had done in the Misra case. So, the upshot is that not only was he positively an unsuitable candidate for the Rajya Sabha, negatively he was totally unsuited to even be considered.
Apart from an obdurate inability to accept retirement and vaulting ambition, how and why did Gogoi accept this nomination? The ‘how’ will remain hidden but not beyond the gift of surmises. Did the government approach him? Did he approach the government? Who was the broker? Law minister Ravi Shankar Prasad who defended him in the Rajya Sabha after Gogoi’s swearing in? Or Amit Shah? Or through other channels? Or, was it a continuous process when Gogoi and politicians met officially or unofficially?
Separation of powers aspects
Separation of powers does not mean the judiciary and executive do not interact. The fact remains that the judiciary and the government have to meet at several ministerial or bureaucratic levels. This is necessary at various levels for various reasons. The most obvious case is over the appointments of judges. Although there is a collegium system, the principal pivotal architects of exchange are the CJI and the law minister. At different times, law ministers have been powerful. In H.R. Bhardwaj’s term as law minister in the first Manmohan Singh government, there was an adage that to be a judge you did not have to know the law, only the law minister. On one occasion, as academic adviser on legal aid, I was dining with a CJI but was turfed out because I could not be seen in his house by the law minister. There was a time when judges could not leave the country without the government’s permission. In an interesting incident, a CJI had to approach the law minister and then the prime minister so that the his wife could travel with him.
But another important arena for meeting is over the budget and finance for the Supreme Court, and also by the high courts for the lower judiciary. There was a now discarded custom personified by some high court chief justices who had to go ‘begging bowl’ in hand to their chief minister for money for buildings, expansion, staff, library and general expenditure. It took a long time – and protest and negotiation – for the Ambassador cars of Supreme Court judges to be replaced by newer cars. It must be remembered that the judiciary earns next to nothing on its own. Its fee collection is minuscule and is discounted against its budget and the major part of stamp fee collections – which can be massive – goes not to the coffers of the judiciary but to general revenues.
Separation of powers between the executive and judiciary is both a matter of principle and pragmatism. That is why budgeting, appointments and staffing become critical. But interaction over these aspects does not affect the autonomy of the judiciary unless pressure is put in these negotiations on the judiciary. Beyond this, conventions dictate that personal meetings not be made, but on formal occasions such as celebrating law day or for book releases and the like, such meetings are permissible. Of late, judges have been inviting politicians to weddings of the former’s relatives and Gogoi invited Prime Minister Modi to a dinner at the Supreme Court itself.
Speaking to an Assamese news channel, Gogoi gave public interest reasons for his ‘accepting’ the nomination:
“I have accepted the offer of nomination to the Rajya Sabha because of the strong conviction that the legislature and the judiciary, at some point, work together for nation building? …(seeking God’s help) to have an independent voice in Parliament.”
Does this imply that Gogoi has a choice not to be an independent voice in parliament? Second, does this imply that inducting chief justices (and other judges) into parliament is good for ‘nation building’? Or that only he is singularly capable of performing this task and nobody else? Third, ‘nation building’ is a very big term appropriated by politicians and those in public affairs. Indeed, Modi’s government claims to be ‘nation building’ and Gogoi has already contributed to this while in judicial office.
Having said that, it should be noted that parliament cannot discuss the conduct of Supreme Court and high court judges (except their removal as per procedure) and judges cannot inquire into proceedings in the legislature. As indicated earlier, work especially on budgets, finance, security checks, staffing etc over which Parliament and state legislatures have control have to be co-ordinated. What the judiciary wants is not there for the asking. The courts work with the home, law and justice, finance and other ministries. Parliament has committees to deal with law and justice. The key figure in all this is the law minister and home and finance when required to prepare ‘demand grants’ and keep the institutions working smoothly and efficiently. Chief justices have been known to write and meet the prime minister for a variety of known and not well known purposes.
In this scenario, what is Gogoi’s role in ‘nation building’ and creating cohesion between the political wings and the judiciary? If he joins the BJP and thus accepts its whip, he will be captive to the party in power. What would the next step be for him? Would, and can, he be law minister? Will he become the special extra-constitutional negotiator for the BJP with the judiciary – an idea that would be abominable? If he says anything outside parliament about judges and decisions, will he be vulnerable for contempt proceedings of the kind that Gogoi inflicted on Justice Katju? In other words Gogoi, as an MP, is constitutionally bound in more ways than one. He can no longer speak from the pulpit as he did in the Supreme Court. As a nominated member, his political ambitions would be minimal unless another deal is in the offing. As a citizen, he will be subject to all legal restraints including contempt of court, defamation and official secrecy .
Thus, his intra-constitutional work would be to speak in parliament and to join select committees. In fact, this would cover up all the help that he has given the government. If, as an ordinary citizen, he offered his views on, say, the CAA or NRC, he would totally expose himself and be publicly countered and criticised like anyone else. In parliament, he would be safer. Even without joining the BJP, he would become an authoritative spokesman for Modi’s government – seemingly projected as an independent voice. Does the Modi government really need him so badly as to destroy the institution of the judiciary by compromising it? Or will he be the government’s ‘hit’ man or even advisor, formal and informal? This would be detestable, casting a shadow on his past and present and on the very relationship between the executive and judiciary. Not without reason did Justice Madan B. Lokur poignantly ask, “Has the last bastion fallen?”
Post-retirement posts for judges
The need for post-retirement policy for high court and Supreme Court judges was not fully raised by the constituent assembly but considered in the fall out of the Setalvad-led 14th Law Commission Report (1958). There are alternative insights.
(i) First, post retirement judges can do whatever they like: simply retire, do arbitrations, give opinions, in the case of retired high court judges, practice in the Supreme Court but not in their home courts. In each case, they must remember that their past status as judges, which should never be compromised or even flaunted in the public eye or the public domain.
(ii) In certain cases they may be called to head commissions like the Law Commission or special inquiry commissions. But as far as the Law Commission is concerned, the most impressive First Law Commission of 1956 was headed by lawyer-Attorney General Setalvad. Some tribunals and public offices (like the National Human Rights Commission) require the appointment of judges. In some cases, the retirement age in these commissions is 70 , while high court judges retire at 62 and Supreme Court judges at 65. This suggests the system needs retired judges even if it has become something of a fetish for judges to seek post retirement jobs or for governments to want them in those posts even when they were in judicial office. Around this, has grown a ‘culture of post retirement judicial appointments’, full of gifts and promises. There is a great need for this culture to be smashed and with it the ‘tit for tat’ that it engenders. At present, there are no safeguards. Everything is in the hands of the government, often in consultation with the chief justice who is, in many cases, himself looking for a post retirement job.
(iii) There is a suggestion of a ‘cooling off period’ so that no immediate rewards are made. But the immediacy of the appointment is not a real solution. It only postpones the patronage and ‘favour for favour’ system.
(iv) Then, there is the question of judges and political office. K.S. Hegde had been in parliament before his appointment as a high court judge, V.R. Krishna Iyer had been a minister in a state government. This did not bar them for judicial appointments as distinguished politicians and lawyers without any deal being made. Many justices seek to join mainstream politics after retirement. Justice Subba Rao contested the presidency after resigning his post, as indeed did Krishna Iyer after retirement. This cannot be faulted unless party politics was the reason for candidature. Justice M. Hidayatullah contested for vice president under clean circumstances.
(v) There have political appointment cases. Justice Ranganath Misra had helped the Rajiv Gandhi government to absolve the Congress in the anti-Sikh massacres of 1984. He was made the first chairman of the NHRC and later elected by the Congress to parliament – when it was in opposition, such was the gratitude. Justice Baharul Islam was in the Rajya Sabha which he quit in 1972 to become a judge. He cleared a financial scandal in Bihar and then the quit Supreme Court in 1983 to enter the upper house as Congressman. The nexus was all too obvious.
As soon as quid pro quo enters that process it is necessarily tainted. The huge danger is judicialising politics or politicising the judiciary in unholy public matrimony. It is certainly the case that Justice Gogoi’s appointment is tainted in every conceivable way.
A sweeping reform would be to ensure there is no executive say in post-retirement judicial appointments, even with the consultation of chief justices. Statutes that require such appointments should be suitably amended. If some appointments are made, they have to be made by a neutral transparent public hearing in which judges can be asked questions. We have concentrated so hard on judicial appointments that we have totally overlooked post-judicial appointments. This is something that needs to be urgently considered before the partly fallen last bastion falls completely.
As far as Gogoi’s nomination to the Rajya Sabha is concerned, he does not fit the bill on merits. His nomination is a reward for past and future pay back. This is to be condemned since he does not have the integrity to decline the job or resile from it.
It is difficult to approve of the disruption of parliament and the walkout during his swearing in. This is not the sort of practice any legislature can stoop to. But Harold Wilson had a word for an MP elected on the basis of a racist campaign – to call the latter ‘a parliamentary leper’.
Rajeev Dhavan is a senior advocate in the Supreme Court