James C Sheppard wrote an interesting essay on judicial retirement in the American context with the subtitle, “The age of judges and the judge of ages” (American Bar Association Journal, vol.44.No.2, February 1958). The title attains relevance in a totally different context in India.
Unlike in the US, the Constitution of India prescribes a formal retirement age for the judges of the High Courts and the Supreme Court as 62 years and 65 years, respectively. In practice, somehow, judicial retirement in India is only a kind of metamorphosis to some other form, political, bureaucratic or administrative. Many judges in India, in effect, do not retire. Thus in practice, we have many aged judges and only a few judges of ages.
The nomination of Justice Ranjan Gogoi as Rajya Sabha member has created controversies. Many view it as a gesture of political favouritism.
Justice Krishna Iyer felt that such instances of “post-retirement rehabilitation” pose a great threat to the independence of the judiciary. But the practice was there since the 1950s. Justice Chagla, the Chief Justice of the Bombay High Court, was appointed as a diplomat to the USA and to the UK by Prime Minister Jawaharlal Nehru.
It was more a choice for the person, rather than a political decision. Hidayathullah retired as Chief Justice in 1970 and became the Vice President of India in 1979, which, however, was based on consensus.
There were political games, which were too obvious to be mistaken. Justice Baharul Islam resigned from Rajya Sabha in 1972 to become a judge of the Gauhati High Court and after his retirement as Chief Justice of that court, he was made a judge of the Supreme Court. Later, he resigned from the Supreme Court to contest for Lok Sabha as a Congress candidate. Chief Justice Ranganath Misra’s berth in the Upper House of Parliament became controversial. His The Commission he headed had probed earlier the anti-Sikh riots (1984) and exonerated the ruling Congress.
Political appointment of judges in India is, therefore, not unprecedented. There is also a long list of retired judges who were chosen as the heads of statutory bodies like the National Green Tribunal, the Lok Ayuktha etc. Those appointments, however, had the backing of statutory prescription.
It is not unusual for a parliament to have certain nominated members from various walks of knowledge. Canada, Egypt, Ireland, Italy and the UK and other third world countries have adopted such practice. It has been more prevalent in Commonwealth jurisdictions.
But unlike an appointment to the statutory bodies, a political nomination would call for a stricter scrutiny. Article 80(3) of the Constitution empowers the President to nominate “persons having special knowledge or practical experience” in matters such as literature, science and social service.
A literal interpretation of Article 80 may include a person from the field of law as well within its ambit, on account of the usage of the words ‘such as’. The fields referred are only illustrative and not exhaustive as rightly held by the Delhi High Court in Ram Gopal Singh Sisodia vs Union of India (2012).
This clause has, however, an ethical dimension. It is a constitutional encomium to those who contributed to the nation and her people by virtue of their expertise.
Mere knowledge or experience does not suffice. To say that any arbitrary and politically motivated decision sans moral and judicious judgement would be protected by Article 80, is an amoral reading of the constitutional provision.
J H Proctor in a 1985 essay titled, “The nominated members of India’s Council of States: A study of role-definition”, said that “most of the 60 members nominated during the first 30 years (of the republic) have been men and women of great artistic or intellectual attainment but no political experience”. He also remarked that “(the nominated members) were generally listened to respectfully” in the House. Between 1952 and 2013, some 119 persons were nominated to Rajya Sabha, according to Subhash Kashyap.
The Centre and the President are legally and constitutionally entitled to make the nomination. But, in the matter of Gogoi, the nomination lacked legitimacy due to a wrong choice. On the Bench, Justice Ranjan Gogoi defended himself and accused the complainant. Off the Bench, in the press conference, he attacked the then Chief Justice. His double stand on post-retirement avocation is troubling. The fact remains that the crucial questions about his nomination remain unanswered or wrongly answered even now, despite the series of TV interviews by the ex-judge.
It is the conduct of Justice Gogoi, even more than the allegations against him, that makes him ineligible for the benevolence of Article 80(3). Still, it is not a case of a single individual. A system that creates and perpetuates an unholy nexus between the different branches of power is inherently partisan and undemocratic.
(The writer is a Supreme Court lawyer)