Whither the Indian Judiciary? This question has often been raised in the past whenever the judiciary-executive nexus or aberrations have come to the fore. It is, of course, no secret that the political executive often plays with the appointment and confirmation of high judicial posts or puts “pressures” on sitting judges for favourable verdicts. The latest case, which has raised a storm, has been the nomination of former Chief Justice of India Ranjan Gogoi to the Rajya Sabha by the Modi government within seven months of his retirement.
Was it a case of quid pro quo? The answer to this question depends on how one looks at politico-legal affairs in India. Amidst varied criticism, former apex court judge Justice Kurian Joseph has said, “I am surprised as to how Justice Ranjan Gogoi, who once exhibited such courage of conviction to uphold the independence of the judiciary, has compromised the noble principles on the independence and impartiality of the Judiciary”.
Former apex court Judge Madan B Lokur, Justice O P Shah and Justice R S Sodhi have also reacted sharply to Gogoi’s nomination by the government.
Justice Gogoi retired last November after presiding over the Supreme Court around 13 months. He had headed the Constitution bench that delivered a landmark judgment in the temple-mosque dispute in Ayodhya. The court handed the disputed 2.77 acre land for Ram Mandir and granted 5 acres for a mosque at an alternative site in Ayodhya. He was also part of the bench that gave a clean chit to the Modi government in the case relating to the acquisition of the Rafale jets on the ground that there was no occasion to doubt the decision-making process in the procurement of 36 fighter jets.
At one stage, there were allegations of sexual harassment against him by an employee of the apex court. He was later cleared by a three-member Supreme Court panel.
It may be recalled that Justice Gogoi was among the four sitting top court judges who had held a first-of-its kind press conference in January 2018 when Justice Dipak Misra was the Chief Justice. They had alleged that Justice Dipak Misra gave selective “assignment of cases to preferred judges” and that “sensitive cases were allotted to junior judges”. This certainly reflected poorly on the credibility of the country’s judicial system.
After being sworn in as a Rajya Sabha member on March 19, Justice Gogoi justified his new role by saying that judicial independence was actually being compromised because of the stranglehold of a “lobby” of half a dozen persons over the judiciary who “maligned a judge if a judgment did not go as per their wishes”. He did not spell out the details.
It may be recalled that in his farewell speech, Justice Gogoi had spoken of the lawlessness taking over in “some pockets” of the legal system. Even otherwise, lawlessness prevails these days in almost every segment of society, under the very eyes of judges. This has also been overlooked by political and police bosses. Still, the fear of the judiciary makes potential wrongdoers to be cautious. In any case, I keep my fingers crossed about the future of the polity. Will Justice Gogoi play a pro-active political role in the Rajya Sabha? This can’t be said with certainty at this juncture.
It may be recalled that Chief Justice Ranganath Mishra, who retired in 1991, was nominated by the Congress to the Rajya Sabha in 1998. He stayed there till 2004. Later, former Chief Justice of India P. Sathasivam was appointed a governor of Kerala by the Modi government. We have also a highly interesting case of former Justice Baharul Islam who was earlier a Rajya Sabha member before being nominated as a Judge of the Guwahati High Court. He was appointed a judge of the Supreme Court in 1980. He even absolved the then Bihar Chief Minister Jagannath Mishra in the urban cooperative bank scandal. He thereafter resigned as Judge and again became a Rajya Sabha member.
Is this not a dubious case of judicial political turn-coat? Everything is possible in India, whichever government happens to be in power. This shows how the judiciary could be vulnerable to the whims and fancies of political masters. This happens because the selection, appointment, service and other benefits of the judiciary largely depend on the politicians in power.
Looking beyond Justice Ranjan Gogoi’s issue, I fervently believe that the Indian Judiciary and related matters require a close critical look in totality. A selective approach will not help improve matters. Here I wish to recall the observations of a distinguished British Queen’s Counsel David Pannick, as recorded in his book Judge (1987), which broadly reflects the concerns which also bother us about the Indian Judicial system. He wrote: “As people grow even less willing to accept unreservedly the demands of authority, the judiciary, like other public institutions, will be subjected to growing amounts of critical analysis. The way in which “Judge & Co is run is a matter of public interest and will increasingly become a matter of public debate”.
How true! In India, an intense public debate is already in swing on the state of the judiciary, the quality and accountability of judges and independence of the judiciary. An independent judiciary and its enlightened role is the only hope for the people when the ruling class fails to discharge its constitutionally assigned duty fairly and honestly.
The question here is not one of saving the Constitution but of saving the nation and making the polity, especially the Judiciary, transparent, functionally efficient and democratically more liberal, just and caring for the common man.
Justice B Lentin, former Bombay High Court Judge, once said: “The Constitution has not failed the people, nor have the people of India failed the Constitution. It is only the unscrupulous politicians who have failed both.”
Looking beyond Justice Gogoi’s nomination to the Rajya Sabha, I honestly feel that the challenge before us is to ensure independence of the judiciary which alone holds out some hope for the future of our democracy, free flow of information and free and fearless functioning of the media!
The facts and views expressed in the article are that of the author