Does the inclusion of an EX-CJI into any house of parliament affect the maintained system of checks | Important Acts and Laws for Judiciary Exams PDF Download

Introduction

• Ranjan Gogoi was nominated by the President to the Council of States to fill a vacancy in March 2020.
• This nomination stirred controversy among some members of the court and the opposition party, Congress.

Prior Appointments of Ex-CJIs To Parliament

Appointment of Ranjan Gogoi is not the first time a retired judge has been given a parliamentary position in India.

Justice Ranganath Mishra

• Congress nominated Justice Ranganath Mishra in 1998, over six years after his retirement.
• Controversy arose due to suspicions of a quid pro quo situation, as he had cleared Congress of involvement in the 1984 anti-Sikh riots during his tenure.

Justice Baharul Islam

• Justice Baharul Islam was a member of the Rajya Sabha from 1872 to 1972. He later served as a judge in the Guwahati High Court and was appointed to the Supreme Court in 1980. 
• In 1983, he was assigned to the Rajya Sabha. A controversial judgment of his was the one that provided relief to the then Congress CM of Bihar, Jagannath Mishra, in the Patna Urban Cooperative Bank scam case.

Justice Mohammad Hidayatullah

• Justice Mohammad Hidayatullah served as the Chief Justice of India from 1968 to 1970. 
• He later held the position of Vice President from 1979 to 1984.

Justice KS Hegde

• Justice KS Hegde's election as the Speaker of the Sixth Lok Sabha was remarkable because he assumed this high office during his first term as a Lok Sabha member. 
• Prior to joining the Judiciary, he had been a member of the Rajya Sabha.

Arguments against J. Gogoi

• In paragraph 29 of the 14th report of the Law Commission of India, it is stated that judges should refrain from accepting government positions post-retirement. This is because many cases that come before the Supreme Court involve the government, and if the Chief Justice of India were to be appointed to the legislature, it could significantly impact these cases. 
• The nomination of Ranjan Gogoi came merely four months after his retirement, raising concerns of possible impropriety, especially considering the series of judgments he made that favored the government.

Ayodhya Judgement

• In November 2019, a bench led by CJI Gogoi ruled in favor of granting the disputed land in Ayodhya to Hindus for the construction of Ram Mandir. Additionally, the government was ordered to allocate a 5-acre plot for the construction of a Mosque. 
• This decision is significant due to the historical and political implications associated with the Ram temple in Ayodhya, which has been a focal point in Hindu Nationalist Politics for the past three decades. 

Rafael Case

• In a ruling on 14 November 2019, another bench headed by Justice Gogoi absolved the Modi government in the Rafael case, dismissing multiple review petitions. 
• Furthermore, the court initiated proceedings against Rahul Gandhi, a member of the Congress party, over the "chowkidar chor hai" remark. 

Electoral Bonds Case

• A bench presided over by Justice Gogoi opted not to address the Electoral Bonds issue, citing the need for a comprehensive examination of the matter. 
• No interim order was issued to halt the issuance of Electoral Bonds during this period. 

Kashmir Case

• Following the revocation of Article 370 on 28 August 2019, the Supreme Court declined to intervene in the restrictions imposed by the government on opposition leaders in Kashmir, despite numerous petitions submitted to the court. 
• This decision favored the government's stance. Notably, Justice Gogoi himself criticized the practice of post-retirement appointments of judges, highlighting concerns about judicial independence. 

Arguments in favour of Justice Gogoi

• In a Healthy Democracy: In a well-functioning democracy, there should be a natural system of checks and balances among the legislature, executive, and judiciary. Justice Gogoi's argument for collaboration in nation-building appears to contradict this principle of checks and balances. His appointment could be detrimental to the separation of powers and the independence of the judiciary.
• Post-Retirement Judge Appointments: Appointing judges to positions after their retirement sends a negative signal within the judiciary. It creates an expectation among current judges and instills a fear that judgments not in favor of the government could jeopardize future post-retirement opportunities.
• Arguments Supporting Justice Gogoi: Justice Gogoi's appointment is not illegal, as there are no legal barriers to it. Article 220 and the 14th report of the Law Commission of India clarify that a retired Supreme Court judge cannot practice in the same court but can be appointed to either house of parliament, including as the Chief Justice of India.
• Role of Ex-CJIs in Rajya Sabha: The Rajya Sabha plays a significant role in shaping the country's laws, requiring expertise from various fields to guide lawmakers effectively. Therefore, appointing a former Chief Justice of India to the Rajya Sabha is crucial as they bring profound legal knowledge and can offer valuable contributions compared to appointing individuals from non-legal backgrounds like cricketers or actors.

Justice Gogoi's Response to Criticisms

• Following his nomination, Justice Gogoi addressed criticisms by emphasizing the importance of collaboration between the legislature and the judiciary for the progress of the nation.
• He expressed that his presence in parliament would enable the representation of judicial perspectives to lawmakers and vice versa.
• It was argued that Justice Gogoi's judgments were not biased towards the government since rulings are made collectively by a panel of 3 to 5 judges, ensuring independence in decision-making.

Conclusion

• Hence, to uphold the independence of the judiciary, there should be a consistent policy prohibiting judges from accepting government positions after retirement, and they should receive their last salary as pension. For example, Section 8(1)(iii) of the Lokpal Act, 2013 states that upon leaving office, the Chairperson and every Member are ineligible for reappointment in any government office. Similarly, there needs to be clarification on the permissibility of post-retirement appointments for judges.
• Nevertheless, if post-retirement appointments are permitted, measures must be in place to prevent any misconduct. For instance, a mandatory cooling-off period, as observed in the cases of Justice Rangnath Mishra and Justice Hidyatulla, could be implemented.
• However, before introducing these changes, it is imperative that judges maintain the judiciary's reputation and refrain from engaging in practices such as those demonstrated by J. Gogoi.