Link – https://www.dailypioneer.com/2020/columnists/hardly-an-elevation-for-a-former-cji.html

“Both ‘Mr Gogoi’ and ‘Justice Gogoi’ have not broken any law. Still, perhaps Justice Gogoi may have dropped the ball on the way to the Rajya Sabha and allowed the common man to question the independence of the judiciary.”

Former Chief Justice of India (CJI) Ranjan Gogoi demitted office in November 2019, and four months later he was nominated by the President under Article 80 of the Constitution as a Member of Parliament (MP). His nomination has raised many questions. Why did Gogoi accept the nomination to the Rajya Sabha (RS)? Did he not decide cases where the Government was a party? Is the judiciary independent? Only an independent judiciary can direct the Government to enforce rights, and one of the most important objects of the Constitution is to secure justice for all its citizens. 

The State comprises three organs — the legislature, the executive, and the judiciary. It is envisaged that the State and the executive are to be separate from the judiciary, which is independent. This independence and impartiality are essential for the Supreme Court and the High Courts to direct the Government to enforce the fundamental rights of citizens and order the Government and its functionaries to respect individual liberties.

Liberty, fundamental rights and freedom are essential for the existence and the Constitution recognises this. It vests unfettered and independent jurisdiction on the Supreme Court to pass any order in the public interest to do complete justice. Independence of the judiciary is an integral part of the Constitution, as is expected of a sovereign democratic nation. The power of the apex court to direct the Government is essential in our democracy, considering the immense powers that the Government has. Justice Khanna says that independence of the judiciary is also linked to essential human rights and civil liberties and the rights are needed because while you want to enable the Government to control the governed, you also want it to control itself.

However, the Government is the biggest litigator in India and about 37 million cases are pending in the District Courts and High Courts. As of March 1, over 60,469 cases were pending in the apex court and according to the Department of Justice in 2017, approximately 46 per cent of the total pending cases in courts pertained to the Government.

The courts are bound to decide millions of cases where the Government is a party. The independence of the judiciary is perceived by the common man by the conduct of the judges. The confidence of the citizens will be diminished if the judges are seen too close to the executive and it is the responsibility of the judges and lawyers to ensure that this trust is not lost.

The CJI’s Office is the highest and most respected positions in the judiciary. The importance of this position can be appreciated by the fact that on January 26, 1950, the Chief Justice MK Kania administered the oath of office to Rajendra Prasad, the first President of India. Later, in 1969, Chief Justice M Hidayatullah was briefly made the President.

In the higher courts, when a lawyer becomes a judge, they are referred to as “justice” after that. The judge’s oath is to bear true faith and allegiance to the Constitution and duly, faithfully and to the best of their ability, knowledge and judgment perform the duties of the office without fear or favour, affection or ill-will uphold the Constitution and laws. Disrespect to a judge or court is a contempt of court and punishable to protect the dignity of the institution of justice. Under the Constitution, a judge of the Supreme Court is prohibited from practising in any court after retirement. The first Law Commission headed by India’s first Attorney-General, MC Setalvad presented a report on Judicial Reforms in 1958. It was recommended that a Supreme Court judge should be totally barred from accepting any employment under the Union or a State after retirement other than employment as an ad hoc judge of the Supreme Court under Article 128 of the Constitution. The Law Commission also recommended that judges of the Supreme Court should not start chamber practice after retirement. These recommendations have not been implemented. Other Constitutional functionaries such as the Comptroller and Auditor-General of India and members of the Union Public Service Commission are barred from post-retirement employment with the Government. Bureaucrats in the Administrative Services can take up commercial employment after one year, post-retirement, also known as the cooling-off period. In 2014, Chief Justice R M Lodha at his retirement suggested a two-year cooling-off period for Supreme Court Judges after retirement. 

Setalvad’s recommendation to ban all post-retirement employment makes good sense for the preservation of the independence and dignity of the judiciary. However, it may not be fair to prohibit a retired judge from working. United States (US) Federal judges are appointed for life or up to when they choose to quit. The Supreme Court judges in the United Kingdom (UK) retire at the age of 70. Considering that the Government is the largest litigant with millions of cases being heard, a cooling-off period of two to three years is called for in the interest of justice. 

In Justice Gogoi’s defence, by accepting the RS nomination, he has not broken any law. And this is not the first time that a retired judge has been elected to the Upper House. Further, being an MP may not be an employment with the Government.

The experience and skills of retired judges in India are a great resource and should not be wasted. Perhaps the questions arising from the issued raised by the nomination of Justice Gogoi will encourage lawmakers to seriously think about the independence of the judiciary and the enhancement of the retirement age of judges from 65 years to 70 years, with a ban on all post-retirement employment. Our judges are extraordinarily hard-working and highly experienced, and this wealth of knowledge would be put to productive use if they are allowed to continue for a few more years beyond the age of 65.

In a recent interview, Justice Gogoi said that he could be addressed either as “Justice Gogoi” or “Mr Gogoi.” 

Justice Gogoi as CJI held a high position in the order of precedence till November 2019. Now as an MP, he is about 10 to 15 places down in the hierarchy. As the CJI, he was protected by the Constitution and respected in accordance with the finest traditions of the Bar. The Judiciary and the Bar consider the CJI to be the head of the family. The Bar always holds retired justices in high esteem. Coming down the protocol ladder and getting jeered during his oath-taking ceremony in the RS may have hurt the institution of justice. Both Mr Gogoi and Justice Gogoi have not broken any law. Still, perhaps Justice Gogoi may have dropped the ball on the way to the RS and allowed the common man to question the independence of the judiciary.

“This article was first published by The Pioneer. Reproduction in any form would need written permission from The Pioneer and the author.”

Constitution Constitution Independence of Judiciary Post retirement appointments