7 PM | Should judges stop accepting post-retirement jobs offered by govt | 18th March 2020

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Context: Former CJI Ranjan Gogoi’s nomination to Rajya Sabha.

The President of India nominated former Chief Justice of India, Ranjan Gogoi, to the Rajya Sabha (Upper House), as a member of eminence. The move raises a question mark over the judiciary’s independence since Gogoi allocated and handled key cases in which the government had major political stakes until just four months ago.

This brings us to the questions of Judiciary’s independence.  In this article, we will explain the below:

  • Who is Ranjan Gogoi?
  • Is CJI Ranjan Gogoi first to be given political post after retirement?
  • What are views of different personalities about appointment of judges to political office?
  • What is the need of ensuring Judiciary’s independence?
  • Conclusion

Who is Ranjan Gogoi?

  • Ranjan Gogoi served as the 46th Chief Justice of India. His term as Chief Justice was from 3 October 2018 till 17 November 2019.
  • Ranjan Gogoi, was the first person from the northeast to reach the top judicial position and credited for bringing the curtains down on the decades old politically and religiously sensitive Ayodhya land dispute.
  • On 9 November 2019, the five judge bench headed by him delivered the verdict in the historical and controversial Ayodhya dispute case.​​
  • One of the another highlights of Gogoi’s tenure as an SC judge came in 2014, when a bench headed by him kick-started the National Register of Citizens (NRC) process in Assam. The process concluded in August 2019, during his tenure as CJI.
  • He retired on 17 November 2019.

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Note: President’s power to nominate members of Rajya Sabha: In exercise of the powers conferred by Article 80 of the Constitution of India, and on the advice of the Prime Minister, the President of India can nominate 12 members to the Rajya Sabha.

Is CJI Ranjan Gogoi first to be given political post after retirement?

No, Justice Gogoi will not be the first CJI to sit in the Rajya Sabha.

  • In 1952, Justice Fazl Ali was appointed the Governor of Orissa, shortly after retiring from the Supreme Court. In 1958, Chief Justice M C Chagla resigned from the Bombay High Court in order to become India’s Ambassador to the US at Prime Minister Nehru’s invitation.
  • In April 1967, Chief Justice Subba Rao resigned from the Supreme Court to contest elections for President.
  • However, there has been one case of movement in the opposite direction too, from the Rajya Sabha to the judiciary. Baharul Islam was elected to the Rajya Sabha on a Congress ticket in 1962 and 1968. However, he resigned from Parliament in 1972 to become a judge of the Gauhati High Court. Islam retired in 1980, but once Indira Gandhi came back to power, he was sent to the Supreme Court as a judge. He went on to absolve the chief minister of Bihar, Jagannath Mishra, in the urban cooperative bank scandal. He resigned thereafter, only to be made a Rajya Sabha MP again.

What are views of different personalities about appointment of judges to political office?

  • In the Constituent Assembly, K T Shah, an economist and advocate, suggested that high court and Supreme Court judges should not take up an executive office with the government, “so that no temptation should be available to a judge for greater emoluments, or greater prestige which would in any way affect his independence as a judge”.
  • However, this suggestion of KT Shah was rejected by B R Ambedkar because he felt that the “judiciary decides cases in which the government has, if at all, the remotest interest, in fact no interest at all”. But this was primarily because, in Ambedkar’s time, the judiciary was engaged in deciding private disputes and rarely did cases arise between citizens and the government. “Consequently”, said Ambedkar, “the chances of influencing the conduct of a member of the judiciary by the government are very remote”.
  • The Law Commission in its 14th report in 1958, strongly recommended banning post-retirement government employment for Supreme Court judges because the government was a large litigant in the courts. The Commission’s recommendations were never implemented.

What is the need of ensuring Judiciary’s independence?

The constitutional scheme of India provides for broad separation of power and the doctrine of ‘checks and balances’ to ensure the viability of political democracy. There are some roles of judiciary vis-à-vis executive and legislature

  • Role of judiciary vis-a-vis the executive:
  • The power of judicial review under article 13 helps in avoiding encroachment of constitutional jurisdiction on the executive.
  • The power of issuing writs under article 32 and 226 is the essential remdy against violation of fundamental rights of the people.
  • Judicial activism through PILs as well as extra ordinary powers of SC under article 142 helps in making executive accountable to its obligations.
  • Role of Judiciary towards legislature:
  • Doctrine of basic structure has helped in checking the abuse of constituional amendment powers of the legislature.
  • Doctrine of ‘due process of law’ as evolved in Maneka Gandhi case has helped in scrutinizing procedural as well as substantial aspects of law made by parliament.

Conlusion:

An independent judiciary is the upholder and the defender of the constution and the rights of people. It is time that we start expecting the judges of our constitutional courts to follow CJI Hidayatullah’s excellent example. Mohammad Hidayatullah was hearing the highly political privy purses case in 1970, in which he would deliver his last judgment as CJI. In that case, the Supreme Court held that the Indira Gandhi government’s decision to abolish the “privy purses” paid to former Indian princes (who had agreed to join the Indian Union after the British left India) was illegal. He was being considered for post retiremnt poltical offer but Hidayatullah made it very clear that even if he were offered any of these positions, he would not accept them.

Source: https://indianexpress.com/article/opinion/columns/former-chief-justice-india-ranjan-gogoi-rajya-sabha-nomination-bjp-6319321/

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