As the historic corona carnage keeps causing a complete stalling of human activity across the panicky ‘human world', eminent journalist Kumar Chellappan has chosen to brazenly defend former CJI Gogoi grabbing a Rajya Sabha seat within a couple of months of demitting office. Chellappan keeps harping on the point that it’s not new to have a former CJI becoming a lawmaker by being nominated by the President. Former CJI Ranganath Misra too had fought to be elected to the same House though after a period of seven years of demitting office. Chellappan has chosen to ignore the fact that the flak Justice Misra had attracted was enormous indicating the people had not approved of his action. Misra had famously headed a commission to inquire into the 1984 anti-Sikh riots, which had claimed an estimated 3,000 lives. The commission’s findings were – from the benefit of hindsight today – calumnious. It simply found no one guilty. Misra’s next stop, after he superannuated, was a Rajya Sabha membership on a Congress ticket.
Ranjan Gogoi’s nomination to the Rajya Sabha and his TV interviews have generated considerable public discussion. Way back in 1972, advocate-turned Rajya Sabha member Baharul Islam too had resigned to become a judge in the Gauhati High Court, which clearly means he got himself elevated as interpreting law is a much more respectable job than making laws. But Islam had his quota of public beating too for having been slave to the prevailing political establishment. The story of Justice Islam, who had joined the Congress in 1956 and held several party posts till 1972, is even more astonishing. In April 1962, the Congress elected him to the Rajya Sabha; and after unsuccessfully contesting an election in Assam, he was re-elected to the Upper House and aligned with Indira Gandhi after the Congress split. In 1972, he quit the Rajya Sabha and was made a judge of the Gauhati High Court. He retired in 1980; but nine months later, he was elevated to the Supreme Court. Six weeks before he retired again; and a month after giving a clean chit to the then Bihar Chief Minister Jagannth Mishra in a corruption case, he quit as SC judge and filed nomination as a Congress candidate in Assam, an election that never took place because of the ongoing agitation in that State. The Congress then elected him for a record third term to the Rajya Sabha in 1983!
In 2010, former Law Minister Shanti Bhushan had appealed to the Supreme Court to take action against former highly corrupt CJIs. He had mentioned four names. In 2015, former SC judge Markandey Katju told at a public gathering that 50% of the higher judiciary was corrupt. Most amusingly, in April 2017, a CJI-headed SC Bench summoned Justice CS Karnan of Calcutta High Court in contempt for declaring publicly that Superior Court judges were corrupt. Unusually brave Karnan, in turn, summoned the CJI and six other SC judges to appear at his official residence. Karnan failed in his battle, was jailed and eventually retired ungracefully. But his sordid drama did uncover the state of morality and conduct of the members of the higher judiciary.
In January 2017, the Bar Council of India informed the apex court that only 55-60% of lawyers were genuine. Shockingly, judges have been chosen from the fraudulent lot over the years. Post-retirement employment of judges in tribunals, commissions or any such quasi-judicial assignments has never raised public eyebrows. But a top judge becoming part of the establishment is certainly not acceptable, especially when the Government is the biggest litigant at the courts of law at any given point in time.
Justice Gogoi may have done a grand job in the Ayodhya matter; but his Rafael deal judgement looks suspect even today. Not surprisingly, there is a public demand for reopening the case. Similarly, he left the Sabarimala matter hanging. He left it to a bigger bench; and, though he never stayed the prevailing judgement, he did not ensure women entered the shrine safely. He left the matter to the State Government to take care as was considered proper, which is gross violation of law.
Baharul Islam elevated himself from the Rajya Sabha to the High Court. But Gogoi demoted himself from the boss of the apex court position to a mean political stature; and that too in mad hurry. He shamelessly keeps saying he is not interested in becoming a Minister. Further, he keeps ranting that he will be at the Rajya Sabha only for sixty days in a year; and if only possible, he will not take the MP salary. But he never says he will grab the perks and other incalculable benefits for a whole 365 days because his CJI pension is a huge amount of money.
The case of Justice Sunil Gaur being made Chairperson of the Prevention of Money Laundering Appellate (PMLA) Tribunal in August 2019 is an archetypal example. Gaur retired as a Delhi High Court judge on August 22 just after rejecting on August 20 former Finance Minister P Chidambaram's plea for interim protection from arrest by the CBI in the INX Media case.
The issue of judges being influenced by potential post-retirement career prospects had also come up in the Constituent Assembly Debates (June 7, 1949). Professor KT Shah, Rajendra Prasad’s rival in the first Presidential Election of Independent India, moved an amendment to introduce a new Article (Article 193-A) in the Constitution calling for a complete prohibition on judges accepting Government jobs post retirement. The logic for the amendment, Shah believed, is "so simple and the principle underlying it is so clear that there could be no difference of opinion unless you desire your judiciary to be subservient or in any way influenced by the executive".
Interestingly, there is nothing in the Constitution that prevents the Government from offering and judges from accepting post-retirement jobs though Articles 148 and 319 already contain such restrictions for the Comptroller and Auditor General and the Chairperson of UPSC, respectively.
In May 1997, the Supreme Court in a Full Court adopted a 16-point charter entitled 'Restatement of Values of Judicial Life'. The document needs to be revisited to provide for detailed principles and guidance for judges to follow, including a resolution that it would be unethical and immoral for judges to discuss post-retirement career prospects until retirement.
Fortunately for him, Gogoi has slipped into the Upper House without provoking much public hue and cry only because everyone is busy fighting the lethal coronavirus around this time!