The former Chief Justice of India(CJI) Ranjan Gogoi’s acceptance of a seat in the Rajya Sabha, upper house of Indian parliament, sparked severe resentment and backlash from the legal fraternity and citizens. Gogoi had resigned from the Supreme Court in November, 2019. He was nominated by the President of India under Article 80 (1) (a) of the Constitution of India which postulates the nomination of 12 members by the President to the Council of States (Rajya Sabha).The nominated dignitaries are people having special knowledge or practical experience in their respective fields of expertise. His acceptance of this offer into a legislative body was decried as damaging the independence and integrity of the judicial system. Across various media articles and opinion pieces, similar allegations were made; however, they don’t provide effective reasoning or strong logical support to their arguments. The coverage of this issue is alarming because in a democratic setup where the media is responsible for unbiased reporting of facts and truth, it tends to misuse its power by expressing opinions that have the potential to become dogmas. This article addresses the various problems with the argument of an opinion article on the matter of Gogoi’s acceptance of the Rajya Sabha seat and provides an original view on the issue.
The arguments engaged with refer to Arghya Sengputa’s, a reputed researcher in legal policy research, analysis in the Times of India. He posits that Gogoi’s acceptance of a seat in the Rajya Sabha “annihilates the judiciary’s independence” and integrity. He presents two arguments to support his thesis. First, he lays down three criteria to understand the wrongness of his act: the time that has passed after retirement, who the appointing body is, and whether the body to which the appointment is made is adjudicatory or not. He believes that Gogoi’s appointment, four months after his retirement, to a non-adjudicatory position, by the government in power fails the criteria comprehensively. Second, he analyses Gogoi’s career and his judgments as the CJI. He raises various allegations against Gogoi because of his judgments on the Rafale deal, Ayodhaya and his administration of the NRC exercise in Assam. Gogoi’s landmark judgments in these matters are accused as being supportive of the current BJP government’s policies. In a time when the government’s northeast policy is under scrutiny and protest, appointing Gogoi, the first CJI from the Northeast, to the Rajya Sabha is favourable. Arghya also calls Gogoi a “xenophobhic Assamese superman.”
There is a general trend amongst the articles, including the aforementioned, criticising Gogoi for undermining judicial independence. After stating their basic argument, most of them proceed to propositions attacking Gogoi’s character and career as a supreme court judge. To successfully prove the proposition that Gogoi’s participation in the Rajya Sabha damages the integrity of judiciary, one needs to provide a direct causal link between these two cases. As the summary of Arghya’s argument may prove, the article does not provide any direct causation between Gogoi’s being a part of the legislature and its effect on judicial independence. The article is merely drawing a correlation between Gogoi’s judgements, his nomination, and the effect on judiciary; however, it doesn’t provide a logical causation. Moreover, he begs the question by admitting “There’s little point in wasting column space arguing why the offer and acceptance of such post-retirement jobs annihilate judicial independence.” He describes that the fact that any judge accepting a government offer raises doubt about his integrity is axiomatic.
The second major problem with the argument is its appeal to suspicions about Gogoi’s character and career. Arghya persistently attacks various aspects of his career including the judgements he has made (supposedly in favour of the government), the case of sexual harassment that was filed against Gogoi, and his personal interest in the Northeast. These personal attacks don’t hold any relevance to the argument which is to prove the annihilation of judicial independence because the controversy is not just about Gogoi’s nomination to Rajya Sabha. The dissenters believe that the nomination of a retired judge to a legislative body is a harmful act in itself. They are in a sense ad hominem because they simply defame Gogoi’s character.
On another note, let’s consider the possible argument, on the face of it, that his judgements seemingly in favour of the present government damage the judiciary’s integrity and blur the separation of legislature from the judiciary. I object that this proposition indicates a disbelief in the independence of the judicial system as a whole in isolation to the controversy of Gogoi’s nomination. Moreover, if one truly believes in this argument, then his nomination has nothing to do with comprising the judiciary’s integrity. It is his career as a judge which is the source of doubt. Gogoi’s decisions post retirement don’t affect the credibility of his judgments while he was a serving judge. If one is skeptical of the independence of the judicial system because of its judges’ decisions, this scenario of doubt and disbelief is not a consequence of a judge’s post-retirement job. Skepticism about the judiciary is a general belief or opinion that a person may hold. The wariness about Gogoi’s career judgements isn’t caused by his acceptance of a government post.
I argue that Gogoi’s acceptance of a seat in the Rajya Sabha is a rational decision entailing no harm to the integrity of the judiciary. A judge who currently serves the judicial system has various duties and responsibilities towards the society which he/she fulfills. A judge delivers judgements purely on the basis of facts and does not hold bias towards the interests of any external organisation because their appointment as a judge warrants them the benefit of the doubt. Post-retirement, Gogoi is a citizen of the country with no official or moral duty towards the country except those assigned to an average citizen. At this point, if an ex-judge chooses to accept a nomination to the Upper House of the parliament, there seem to be no implications of this action. It is essential to focus on the fact that this nomination is made by the President of India. The duty of being a part of the legislature as a nominated candidate is not similar to joining a political party and contesting for a legislature seat because the latter case may provoke suspicious political affiliations. Gogoi’s acceptance of the seat, as a rational citizen with relevant experience, wisdom, and a sense of constitutional morality, does not compromise the honesty and integrity of his career as a judge, and hence the judiciary.
Gogoi’s nomination falls within the ambit of law and questioning it indicates the popular mistrust in the judicial system. As I pointed out earlier, the uproar and resentment against Gogoi possibly indicates dissatisfaction in the judicial system because his decision is exclusive to the concerns regarding his judgments. It is important to note that his nomination and acceptance does in no way breach the ambits of the constitution; hence, the suspicion arises from the public’s deteriorating faith in the judicial system. Arghya and various other opinions in the media question the credibility of Gogoi’s career judgements on Ayodhya and Rafale. Alleging a supreme court judge’s ties and inclination to a political party itself expresses a serious concern in people’s belief in the purity of the judiciary and its clear distinction from the legislature. Gogoi’s nomination may be interpreted as a trigger to this resentment. In itself, Gogoi’s participation in the Rajya Sabha doesn’t damage the judiciary’s integrity. Additionally, concerns in this matter implicate questioning the credibility and faith in the President of India, considered one of the two truly independent institutions and positions in the country (the other being the judiciary). The grave implications and indications of questioning Gogoi’s nomination and acceptance raise several red flags for the democratic system which the critics don’t admit or address.
Aman Khullar is a second-year student of political science and economics at Ashoka University.