Why Ranjan Gogoi’s RS nomination is wrong, writes Abhishek Singhvi – analysis
This is not an article about Judge Ranjan Gogoi.
One of the brightest justices to preside over the Supreme Court (SC), may be the first to agree with the concerns I am raising. It is about institutional erosion and the weakening of legacies accumulated over seven decades by responsible leaders, judges and governments.
Our system of government works because it is based on the doctrine of the separation of powers. So sacred is this division between the judiciary and other state organs that the SC has repeatedly reiterated that it is part of the unalterable nature of our Constitution.
Our judiciary operates more on faith, trust, perception and belief than it does today and reality. Each of these pillars is shaken to the core by Judge Gogoi’s nomination for Rajya Sabha. Regardless of the merits of the person, said appointment is bound to be perceived, either fairly or unfairly, as a question mark on the independence of the judiciary, of the institution that is the SC and of the last president of the Supreme Court India (CJI) It also gives weight to a perception that has been gaining ground that there is a clear weakening of the judiciary.
The only defense the government can offer is the usual one to deceive a bureaucrat, namely, that it has been done in the past. Each of those examples is not at all comparable to the current nomination. Judge Hidayatullah was named vice president nine years after his term as CJI ended. Judge Ranganath Mishra was appointed six years after his retirement. Judge Bahraul Islam served as a member of the Rajya Sabha several years before being elevated to SC. Judge Subba Rao, who ran for the office of president (and lost to Zakir Hussain) was roundly criticized for the decision at the time.
What do the first two examples have in common? The time between his nomination for the Rajya Sabha and his retirement was considerable. There could be no call for any accusation or doubt.
The immediacy and hasty nature of this appointment, just four months after Judge Gogoi retired, will surely raise questions about its context. It was a mandate that inspired a lot of scrutiny; a possession that saw the repeated use of sealed envelopes, the contents of which were known only to the government; a tenure that registered a significant and frequent number of judgments in favor of the executive. If people offer fair comments questioning the government’s motive, then it’s only their fault.
The Bharatiya Janata Party (BJP) would do well to remember the caution expressed by one of its own. Arun Jaitley warned, in 2012, that “pre-retirement trials are influenced by the desire for a post-retirement job.” Perhaps, those words were never more relevant than they are today.
There is another frequently cited maxim in the law that judges, like Caesar’s wife, must be above suspicion. Can we really say that this quote has not raised suspicions?
Various appointments to administrative bodies require a reflection period for individuals to eliminate the possibility or suspicion of a conflict of interest or quid pro quo. Officials who retire from sensitive positions are prohibited from accepting any other appointment for a period of time, usually two years. These cool-down periods in positions are based on the breakdown of the link between the previous position and the new appointment by interposing a sufficient time interval.
In a recent article, I said that our courts are not in good health and, increasingly, there is a tendency to decide difficult questions by postponing or avoiding them. I added: “The Supreme Court in recent years, in matters where the stakes are high, has shown reluctance to act against the government. There has always been a tendency in courts to give the government a very long leash, but before, when it really mattered, the Supreme Court had stepped in to control the government. In a wide range of cases, that is not the case today … My fear is that the judiciary has lost some of its independence and the courage it needs to control the executive and the legislature. ”
In all the precedents that the BJP chooses to cite from the mandate of Congress, this cooling period was more than satisfied. Jaitely added: “For two years after retirement, there should be a gap (before appointment), because otherwise the government may directly or indirectly influence the courts and the dream of having an independent, impartial and fair judiciary in the country would never be realized. “
It seems that the BJP does not share this concern to guarantee an independent, impartial and fair judiciary. It seems that the rules, principles, morality, and sermons vary depending on whether the BJP is in opposition or in power. This nomination is a great detriment to the legacy of the most dynamic and dynamic institutional pillar of the world’s largest democracy: the judiciary.
Abhishek Singhvi is a high-ranking member of Parliament; former president of the Permanent Parliamentary Commission on Law; National Speaker, Congress and former Additional Attorney General of India
The opinions expressed are personal.