Herald View: Ranjan Gogoi’s nomination to the Rajya Sabha sets an unacceptably bad precedent 

Some judges know the law while other judges know the law minister’, is what a late BJP leader is said to have quipped when BJP was in the Opposition. Had he been alive today, he could well have added that some judges also know the Prime Minister and the Home Minister. Indeed, the last few years have witnessed a growing bonhomie between the Executive and the Judiciary. The somewhat incestuous relationship, which was always there, went through qualitative changes during this period.

The interaction between the Prime Minister and the Home Minister on one hand and the Supreme Court judges on the other were seldom so frequent, so intimate or so brazen as during the last few years. Not only did the Prime Minister take the liberty of inviting himself to the Supreme Court, he had also expressed a desire to see the Court No. 1 presided over by the Chief Justice of India, one of the senior most judges publicly hailed the PM as a globally acclaimed visionary. The nomination of retired CJI Ranjan Gogoi, therefore, should not have come as a surprise. But the nomination has, in fact, caused a seismic upheaval in the legal fraternity and shocked both the Bar and the Bench. Several retired Supreme Court judges have unanimously condemned the retired CJI for accepting the government’s offer. The retired CJI exacerbated the discourse by claiming that he believed the time has come for the judiciary and the Parliament to join hands in building the nation. The statement completely ignores the principle of separation of power between the Executive, Parliament and the Judiciary

The judiciary was there to uphold the rule of law and the Constitution and not for joining hands with the government to ‘build the nation’ as Mr Gogoi quaintly puts it. By accepting the nomination, Mr Gogoi has dealt a blow to the credibility and independence of the judiciary, which will take a long time to recover. A false equivalence is being drawn by some quarters between the ‘election’ to the Rajya Sabha of a former CJI Ranganath Mishra in 1998 and the ‘nomination’ of Mr. Gogoi in 2020.

Ranganath Mishra went through a cooling period of six years before getting ‘elected’ to the Rajya Sabha as a nominee of the Indian National Congress, which was in the Opposition then. But in 2020, this is the very first time that the President of India, acting no doubt on the advice of the Union Cabinet, has ‘nominated’ a former Chief Justice of India to the upper house of Parliament; and that too barely four months after he retired. It is amusing to find people defending the nomination of Mr. Gogoi claim that it was the Congress which had set the precedent. If the precedent was indeed to be followed by the BJP, the ruling party should perhaps have waited to occupy the Opposition space before getting Mr. Gogoi ‘elected’.

It is an irony that the BJP which advocated a ‘cooling period’ for retired judges before appointing them to head different tribunals, chose to ignore its own stand while nominating Mr. Gogoi. The fact also is that as many as five Supreme Court judges adorned the office of the Chief Justice of India between 2014 and 2019 before the current CJI Justice Bobde took over the office. By ignoring others and by indicating that Mr. Gogoi is its favourite, the Modi Government has been unfair to Mr Gogoi and gave credence to the suspicion that judicial and administrative decisions taken by him while in office were part of a quid-pro-quo.