The nomination of former Chief Justice of India, Ranjan Gogoi, to the Upper House of the Parliament by the president has sparked a controversy with the left-liberal jamaat engaging in character assassination and casting aspersions about his “objectivity” in the Ram Janambhoomi case. While such a meltdown was not unexpected from the vicious group, Gogoi’s appointment to the Rajya Sabha is not “unprecedented” for two primary reasons.
First, while the Indian Constitution (Article 220) restricts a retired Judge from practising law in the same Court in which he was a judge, there are no restrictions that bar him from seeking employment, joining a political party or getting elected/nominated to the Indian Parliament. It is important to mention that there is no minimum time-limit (commonly referred to as the “cooling period”) before a Judge can ride the political bandwagon, following his retirement.
However, this is not the case with everyone. The “cooling period” applies to Group “A” Government officers who cannot seek commercial employment within 2 years, post their retirement, without the permission of the government. It must be clear by now that there are no legal hurdles that can prevent the nomination of Ranjan Gogoi to the Rajya Sabha.
Second, India has a long history of judges becoming governors, contesting on the tickets of political parties, becoming Vice President and so on. For instance, the 9th Chief Justice of India, Koka Subba Rao who was at the helm of safeguarding the Fundamental Rights of citizens from the Legislature in the infamous Golaknath Vs State of Punjab case resigned 3 months before his scheduled retirement on July 14, 1967, to contest for the post of President. He was backed by the leader of the Opposition, Minoo Masani and secured 44% votes.
Mohammed Hidayatullah, the 11th Chief Justice of India, served as the Acting President from 20 July 1969 to 24 August 1969 and from 6 October 1982 to 31 October 1982. He also served as the Vice President of India between 1979 to 1984, despite having turned down requests for Presidential candidacy on three occasions.
Justice Kawdoor Sadananda Hegde served as a member of the Rajya Sabha prior to his joining the Madras High Court. He was sworn into the Supreme Court in 1967 where he became a part of the majority judgement that laid down the “basic structure doctrine” in the Kesavananda Bharati vs the State Of Kerala case.
The judgement in the case asserted that any amendment that is directed to alter the basic structure of the Constitution can be nullified by the apex court. An agitated Indira Gandhi thus superseded him to make AN Ray the Chief Justice. Hegde resigned during the Emergency and contested from a Janata Party ticket to defeat Congress candidate from North Bangalore in 1977 Lok Sabha elections.
Rangnath Mishra, the 21st Chief Justice of India, who gave a clean chit to the Congress party in the 1984 Anti-Sikh riots served as a Member of Parliament in the Rajya Sabha from the Congress Party between 1998 and 2004.
Justice Baharul Islam was a member of the Rajya Sabha from the Congress Party between 1962 to 1972. Following his resignation, he became a judge in the Guwahati High Court. After his retirement from the High Court, he was appointed to the Supreme Court by Indira Gandhi in 1980. He then resigned in 1983 to become a Rajya Sabha member again from the Congress party.
Justice Abhay Thipsay, who heard cases such as Sohrabuddin fake encounter case and retired in 2017, announced his decision to join the Congress party in 2018. Justice Thipsay was the same judge who convicted 9 out of the 17 accused in the Best Bakery case. Justice Thipsay claimed that the Hindus carried out the 2008 Malegaon blasts. There was absolutely no need for him to say so when nothing has been proven in this case yet, and Islamic radicals were initially suspected to have carried out the 2008 blasts. Thipsay said that we should accept that Hindu organizations carry out bomb blasts.
Other examples include that of Palanisamy Sathasivam, the 40th Chief Justice of India, who was appointed the Governor of Kerala by the BJP Government in September 2014. When the Congress made a hullabaloo over the issue, Manish Tewari publicly acknowledged that there was “no constitutional or legal bar” on a former Chief Justice of India to accept the position of a governor. Vijay Bahuguna who became the 6th Chief Minister of Uttarakhand from a BJP ticket also served as a Judge in Allahabad High Court and Bombay High Court.
In his last week of tenure as the CJI, Ranjan Gogoi passed a slew of key landmark judgments pertaining to government matters, religion, politics, and the applicability of the law to his own office. He etched his name in the annals history when a five-judge bench headed by him on November 9, 2019, brought an end to the Ayodhya land dispute, which dates back to even before the Supreme Court came into existence in 1950.
Ranjan Gogoi also headed a bench which, by a majority 3-2 verdict, referred to a larger seven-judge bench the pleas seeking review of the apex court’s historic 2018 judgement allowing women and girls of all ages to enter Kerala’s Sabarimala temple.
Justice Gogoi’s name will also be remembered for heading a bench which gave a clean chit to the Modi government twice — first on the writ petition and then on the pleas seeking review of the December 14, 2018 verdict, in the Rafale fighter jet deal with French firm Dassault Aviation. It also censured Congress leader Rahul Gandhi for wrongfully attributing the “Chowkidar chor hai” remark against Prime Minister Narendra Modi to the top court.
Although Congress party and others are accusing quid-pro-quo citing the Ayodhya and Rafale judgements, it is important to note that these judgments were not delivered by CJI Gogoi alone. The Ayodhya verdict was given by a 5 judge bench, and the bench that heard the Rafale petition had 3 judges. Therefore, it is an insult to the other judges of those benches to allege quid-pro-quo.
Another important point to be noted is, while the previous judges were elected to the legislature by the Congress party, Ranjan Gogoi has been nominated to the Rajya Sabha by the president, as one of the 12 nominated members of the upper house. He has neither joined the BJP, nor BJP voted for him an election. Although it will be argued that it is still a political decision as the President acts on the advice of the Council of ministers, there is a crucial difference between elected and nominated members. Those who are elected to a house from a party are subject to whip of that party. They are bound to vote the way the party directs them, and in general, they can’t criticise the party and the govt if the party is in power. On the other hand, a nominated member is an independent member, not subject to any party whip. Therefore, if Ranjan Gogoi speaks against the BJP government in the Rajya Sabha, the government or the BJP will be able to do nothing to him.
