Dr B R Ambedkar cautioned that the working of a Constitution does not depend on the document itself. Ultimately, its effect depends on those tasked with implementing it, "…however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot".
Our great constitution was in good hands, fortunately, and well protected by the great institution – Indian Judiciary. The fundamental rights as envisaged in Part III of the Constitution could be realized because of our apex court. It is this institution that protected the character of Constitution from being tampered by majoritarian democratic dictators, by discovering basic structure immunity. Great judges like Justice H R Khanna sacrificed the top position of CJI, to uphold the right to life from being decimated in emergency, that allowed the citizens to survive in authoritarian regimes. The Constitution of India protected us because of the shield and sword of the Supreme Court.
Ambedkar was worried and said: "It is not that India was never an independent country. The point is that she once lost the independence she had. Will she lose it a second time? It is this thought which makes me most anxious for the future. What perturbs me greatly is the fact that not only India has once before lost her independence, but she lost it by the infidelity and treachery of some of her own people……"
Present day anxiety is will India lose its independence of Judiciary? One or two aberrations or infidelity should not shake the foundations of Indian constitutional democracy that was protected by judiciary. The cause of concern is, ever since the news of nomination of former CJI Ranjan Gogoi to Rajya Sabha was flashed, there is an unprecedented surge in criticism, doubtful inferences and uncontrolled bashing of the system in print, electronic and social media and the judicial actions of former Chief Justice are brought into centre stage of this storm of adverse.
Most important in this context is to safeguard the people's faith in the judiciary. For one incident of ethical controversy, the confidence of the people, that was built brick by brick over decades should not be allowed to be shaken. The dark shadow cast on the high reputation of the judiciary and on recent judgments should be cleared as soon as possible by all legal means available to re-erect the edifice of faith of the society in the institution. Because this is the only recourse for poor victims of executive arbitrary actions and draconian pieces of law rolled out from majorities in legislature. If morale of justices is diluted or polluted, perhaps there will be no hope for the constitutional governance according to rule of law. As Martin Luther King Jr said, injustice anywhere is a threat to justice everywhere.
The Chief Justice of India and other honourable Justices are requested to take positive steps to remove the possible adverse effects of spreading clouds on the Sun of faith in judiciary. If it requires the apex judiciary may be prayed or it may act suo motu to use its extra ordinary jurisdiction under Article 142 of the Constitution of India, to have a relook into the judgements rendered by the former CJI in significant cases before his retirement. This may be required to send across a strong message that independence of judiciary is secure in safe hands, and people can unhesitatingly depend on it for remedy, relief and justice. If not, the former Chief Justices of India or other former Justices should seriously think about ways and means to resurrect the image before it is further shadowed by uncontrolled social media attack.
In J.R.Parashar v Prashant Bhushan (2001) 6 SCC 735. Para 12, the SC held that the civil society is founded in the respect for the law. If everyone chooses to break the law, no civil society can exist at all. The Governments at Centre, during the rule by Congress and BJP have undermined respect of the judiciary by such acts of luring the judges in office with post retirement positions in return to the favourable orders.
It may mitigate the damage if the former Chief Justice of India Ranjan Gogoi and the GoI (Government of India) come forward to answer following questions:
No legal prohibition for such nomination
The Constitutional law has not prescribed any prohibition to offer lucrative posts to Justices after retirement. But administrative law says the bias and conflict of interest should be avoided by the holders of Constitutional positions. Trying to be in good books of establishment, while in the office of CJI is a major conflict of interest. Former Chief Justice of Delhi High Court AP Shah and several other jurists and lawyers have considered this nomination of ex CJI to Rajya Sabha as a quid pro quo, or reward for his pre-retirement judgments in favour of ruling party.
Law Commission ignored
The Law Commission of India in its 14th report in 1958 during the Nehru days stated in paragraph 28: "we have noticed the only bar imposed on a Judge of the Supreme Court who has retired is that he shall not thereafter plead or act in any Court or before any authority. In the result some Supreme Court Judges have, after retirement, set up chamber practice while some others have found employment in important positions under the Government. We have grave doubts whether starting chamber practice after retirement is consistent with the dignity of these retired judges and consonant with the high traditions which retired judges observe in other countries."
In Paragraph 29 emphatically stated: "But there can be no doubt that it is clearly undesirable that Supreme Court Judges should look forward to other Government employment after their retirement." Law Commission explained the reason: "The Government is a party in a large number of causes [cases] in the highest Court and the average citizen may well get the impression, that a judge who might look forward to being employed by the Government after his retirement, does not bring to bear on his work that detachment of outlook which is expected of a judge in cases in which Government is a party…………..We are clearly of the view that the practice has a tendency to affect the independence of the judges and should be discontinued." From 1958 to 2020 none of Prime Ministers from Nehru to Modi and none of the Chief Justices of India bothered about this recommendation.
Forgotten advice of Jaitley
Padmabhushan awardee Late Arun Jaitley, former union minister, wrote in his blog, "I have held a strong view that Judges of the Supreme Court and the High Courts must not be eligible for jobs in the Government after retirement. In some cases, the pre-retirement judicial conduct of a judge is influenced by the desire to get a post retirement assignment." Many other jurists and legal luminaries expressed similar sentiments
Post Retirement Posts
Vidhi Centre for Legal policy gave a report in December 2016 that 70 of last 100 retired Supreme Court judges took post retirement posts. One reason is that several laws require the former judges to be appointed in positions created under them. Report says 56 percent appointments were required to be made. National Human Rights Commission, National Company Law Appellate Tribunal, the Law Commission of India and several other tribunals are created under various legislations for post-retirement of Judges. Hence during the last year of service, the judges will be counting the positions available and keep good relations with the establishment, chief justices and other influential power centres.
Gogoi, the latest beneficiary from executive now, has said from a Bench (on March 26, 2019, while dealing with case of post retirement appoint of judges in tribunals) he was leading in, post-retirement job for judges is a scar on the idea of judicial independence. It is difficult to expect unbiased judgement on merits displeasing the establishment year before retirement of a judge. And the law provides for it. We still claim that our judiciary is independent and accountable.
Unfortunately, Gogoi is not the first to be lured. The Congress chose former CJI Ranganath Misra as its candidate to Rajya Sabha 8 years after retirement. It was criticised to be quid pro quo. Interestingly, an obvious link one can read between the favourable report by Ranganath Mishra as one-man Commission, which inquired into 1984 anti-Sigh riots, absolved the criminally charged Congress leaders and gave them clean certificates and giving Congress ticket to Rajyasabha. The Citizens Justice Committee CJC headed by former Justice V M Tarkunde was invited to assist the Commission in its fact finding. But CJC has withdrawn from the hearings bitter criticising the procedures adopted by Mishra Commission. Serious allegation of CJC was that Commission did not protect the witnesses who were continuously threatened and intimidated by the accused. For the favour he did to the Congress party, he was officially rewarded, but after eight years. Only difference between the stories of Ranganath Mishra and Ranjan Gogoi was that Rajya Sabha was offered within four months after latter's retirement.
Earlier, former CJI Palaniswamy Sathasivam was appointed as Governor of Kerala in September, i.e., after four months of retirement as CJI in April 2014. "There are instances of judges taking charge of the Green Tribunal, National Human Rights Commission... But what is in the persona or decisions of the most recently retired judge that has pleased the rulers? This raises a question," then a Congress leader asked. A little before retirement, Justice Sathasivam headed a bench of Supreme Court which quashed a second FIR against Amit Shah in an alleged fake encounter killing case, on the ground that it was linked to Sohrabuddin Sheikh killing case and need not be separated. Justice Sathashivam told media: "There was no quid pro quo for my verdict on Amit Shah. Any other judge would have given the same verdict." But the storm of criticism continued.
Baharul Islam has resigned the membership in Rajya Sabha (Congress MP from 1962 to 1972) to become High Court Judge. After retiring from High Court in 1980, he was made SC judge during Indira Gandhi regime. From bench, Islam has given clean chit to Jagannath Misra in a corruption case, and then the Congress offered him MP of Rajya Sabha soon after demitting the office.
Ranjan Gogoi accepted the nominated post of Rajya Sabha in March 2020, four months after his retirement. He was nominated by the Government, which has deep interests in several matters that were before the Bench headed by him as CJI. He, as the master of roster has decided which matter should be heard by which Bench and kept important cases challenging the actions of the Government before his Bench only. This is the major conflict of interest. Almost of all his decisions went in favour of the ruling party in cases like Rafale matter, dismissal of CBI director Alok Verma, Ram temple in Ayodhya etc. Besides the delay and inaction in several cases like habeas corpus writs from Jammu Kashmir victims and matters dealing with special status to Jammu & Kashmir etc, also helped the NDA alliance from embarrassment. It is also against Indian Constitutional scheme, which is founded on fundamental principle of separation of powers of Executive and Judiciary.
The Ideal cases
Justice Hidayatulla: Former CJI M Hidayatullah retired in 1970 and nine years after that he was appointed the vice president in 1979, which nobody has any reason to object.
Justice Thakur: Former CJI TS Thakur has refused the offer of the Aam Aadmi Party to contest the Rajya Sabha election in 2017, a real regard to moral principle.
AK Sikri: Justice AK Sikri of Supreme Court was on the Government Committee and voted in support of the Government to remove the then Director of CBI Alok Verma in 2019. Congress leader Mallikarjun Kharge, another member of the Committee voted against his removal. was nominated by the government to an international tribunal. But Justice Sikri did not lose any time in rejecting the offer and stood steadfast to his moral ground. These are the great inspiring judges.
Natural principle of justice
The Government is the biggest litigant in all the courts in India today including in the apex court. Should they be allowed to use their high power to influence the judicial process by luring the retiring judges with lucrative positions after they demit office? People should not get to know that the bigger litigant chooses its own judge and offers favours to get what it wanted. Regarding Gogoi, he sat in judgment in his own case to acquit himself of sexual harassment allegations, without following transparent process. Do we need to something to protect these two Natural principles of Justice- audi alterum partem (Hear the other side) and nemo debit in causa sua (Not to be a judge in one's own cause)?
Ambedkar is relevant again as he warned us, "….but this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost for ever. This eventuality we must all resolutely guard against. We must be determined to defend our independence with the last drop of our blood".
We should not forget his caution: "It is quite possible for this new-born democracy to retain its form but give place to dictatorship in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater."
Views Are Personal Only.
(The author is a former Central Information Commissioner)