Cloistered judges and the first line of defense

Cloistered judges and the first line of defense

S. Sivadas

S. Sivadas

Four months after he demitted office as Chief of the Supreme Court, Mr. Justice Ranjan Gogoi, was nominated to the Rajya Sabha by the President, Mr. Ram Nath Kovind, a decision which was received with surprise and shock and even members of the judicial fraternity did not hesitate to attack this move in strong terms. And when he was sworn in soon after, there was uproar and walkout by the Opposition in the Upper House. Justice Gogoi had indeed made a noisy entrance to the legislature from the other pillar of democracy, the judiciary.

At a memorial lecture some time back Justice Gogoi had pointed out that ‘a chain is only as strong as its weakest link. And if introspection is where we have to begin, we might as well as begin here. Perhaps, we can hope that in the future, it is not our finality, but really the infallibility that should define us.’ The judiciary has been endowed with ‘great societal trust’, he continued, and it is this trust that gives it credibility and legitimacy. ‘It is a very enviable spot for an institution.’

The struggle for supremacy between both these arms had been a long one and even Jawaharlal Nehru became aware of it when the founding fathers began working on the Constitution and reconciling absolute judicial independence with the Parliament’s claim to be the keeper of the Constitution while legislating for social reform. And it is this reconciling process that Justice Gogoi intends to perform in his new capacity as an MP.

He stressed that he had accepted the Rajya Sabha nomination for the same reason he had accepted the judgeship at the age of 45 when he had a lucrative practice. ‘There is a practice in the Bar that when a judgeship is offered, you don’t refuse. When the President makes an offer you don’t refuse.’

Justice Gogoi said he was asked by the President to enlighten the Rajya Sabha debates with something he had been working on for the past 40 years. He had no intention to enter politics, join a party and become a minister but once in a while he would like to participate in the discussions to the extent the judiciary’s point of view could be reflected.

About the cooling off period for accepting a new job after retirement, Mr. Gogoi said that so far as the ‘cooling off period is concerned tell me under what law cooling period can be visualised? When you apply a law, apply it across the board, don’t apply it on a case by case basis. How do you then man the tribunals, which are headed by retired Supreme Court Judges?’

On the allegations that his appointment was quid pro quo by the Centre for some of his recent judgments he wondered if these did not amount to contempt of court. ‘Did I write those judgments alone? The other judges were with me, what were they doing, were they not participating, and if it was quid pro quo are they also not collectively responsible?’

In the minority dissenting judgment in the Sabarimala case, which was also presided by Justice Gogoi, Mr. Justice Rohinton Nariman had said memorably that in India’s tryst with destiny ‘we have chosen to be wedded to the rule of law as laid down by the Constitution... Let every person remember that the ‘holy book’ is the Constitution of India and it is with this book that the citizens march together as a nation, so that they may move forward in all spheres of human endeavour to achieve the great goals set out by the ‘Magna Carta’ or the Great Charter of India.’

While regretting his inability to agree with the majority verdict Mr. Justice Nariman went on to say, ‘Organised acts of resistance to thwart the implementation of this judgment must be put down firmly.’

In the struggle for custody of the statute that Justice Gogoi hinted at one of the first to happen was the test for custody of property, and not about personal liberty. This led to the first Constitutional amendment in 1951 that abolished the Zamindari system and taking over private property for public purposes. Since then there had been over100 amendments to this great charter of India.

From the rights of land in the fifties, through the formation of the linguistic states and the inclusion of terms ‘secular’ and ‘socialist’ in the preamble during the Emergency in 1975, we have moved over to the Right to Information act (RTI) and the Public Interest Litigation(PIL) during Justice PN Bhagwati’s tenure it has been a time for a Constitutional transition, long over-due, to ‘bridge the divide between the two Indias- one that believes in the new order and other that lives below the poverty line’ that has been ridiculously drawn.

It was this transition that brought Justice Gogoi, along with three of his Supreme Court colleagues, Justices J Chelameswar (now retired), Madan B Lokur and Kurian Joseph, to hold an unprecedented press conference making public a letter they had written to Chief Justice Dipak Misra raising questions on various issues pertaining to the functioning of the court, particularly allocation of cases. ‘It’s a discharge of debt to the nation which we have done,’ Justice Gogoi said.

There had been transgressions earlier as well with one of them even being impeached and another charged with contempt of court and sent to prison.

As far as post-retirement assignments many had been called to arbitration panels and some of these had lasted a long time, like the Eradi panel on SYL canal. But the rush came along with the cricket craze and the burgeoning of the one-day game and the extensive television viewership. Suddenly the cash-rich Board of Cricket Control in India (BCCI) was caught in litigation and there was enough scope for judicial intervention. Retired judges were much in demand and an impressive array of them found that they had more than their hands full.

From the time of the land litigation cases to the habeas corpus and civil liberties issues to the redressing of social wrongs litigation has moved on to more contemporary issues like medical malpractices, copyright act violations and plagiarism. The Me-too virus that assumed pandemic proportions around the time had also not left the staid portals of the judiciary alone with one judge handling cricket arbitration case having to resign for improper behaviour with an intern.

Once during a TV session the yoga exponent Dhirendra Brahmachari had quoted a Sanskrit line, Shaktanam Bhooshanam Kshama, meaning patience is the badge of the strong whereas it is the armour of the weak, to prove a point. Some of Justice Gogoi’s predecessors like Justice Venkatachelliah and Justice Kapadia, who came from modest backgrounds, exemplified this.

From the cloisters, judges have come a long way and they are no more the Trappist monks who never interacted with the world outside. In the highly fractured and charged atmosphere, that has been heightened by the excitable and round the clock media gaze this is what Justice Gogoi had demonstrated by taking his seat in the Upper House. For the only Judge from the Northeast region to hold the highest judicial post in the country, he had come a long way.


The facts and views expressed in the article are those of the writer.