Whither judicial independence?

Whither judicial independence?

Former Chief Justice of India (CJI) Ranjan Gogoi

The nomination of former Chief Justice of India (CJI) Ranjan Gogoi to the Rajya Sabha raises uncomfortable questions about judicial independence and the award of post-retirement positions to judges. Justice Gogoi retired only four months ago and it is not known why the Upper House is so urgently in need of the wisdom and learning of a former CJI. Justice Gogoi has said he is in favour of enhancing cohesion between the judiciary and legislature. But then, the executive, the legislature and the judiciary are separate organs of the State and the Constitution has mandated this separation. Justice Gogoi had himself eloquently argued for the sanctity of this separation of powers in a democracy. He had also disapproved of the government's power of reappointment of members of tribunals after their retirement. He had said that this would erode “public faith in the justice dispensation system” and lead to interference by the executive, which would jeopardise the independence of the judiciary. This should have been applicable in his case, too. Justice Gogoi, it may be recalled, was one of the four senior-most judges who had, in an unprecedented move, addressed the press in January 2018 on the handling of cases by then Chief Justice Dipak Misra.

There are certain positions like the chairmanship or membership of tribunals or commissions like the human rights commission which are set apart for retired judges. It is wrong for governments to offer other positions, especially those that carry power and influence, to judges, and it is wrong for judges to accept them. Judges should follow a code of conduct not only when they serve on the bench but after retirement also. The nomination of Justice Gogoi has invited widespread criticism from the Opposition, from the legal fraternity and from former judges. Indeed, when he took oath, for the first time in Parliament, the swearing-in of a member was marred by slogan-shouting as the Opposition protested against his nomination to the Rajya Sabha. They even staged a walkout from the House.

It is not the first time that a retired Supreme Court judge has been nominated to such a position after his retirement. Another former CJI Ranganath Misra was nominated by the Congress to the Rajya Sabha, but it was several years after his retirement. Justice P Sathasivam was appointed Kerala governor by the Modi government. These were also wrong and inappropriate decisions. The Supreme Court is the protector of the Constitution and citizens’ rights, and it should not allow itself to be weakened or co-opted. It can address the issue of post-retirement jobs for judges and evolve norms, guidelines or rules in this regard to protect its own credibility and standing. 

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