A fall, indeed

Mr. Ranjan Gogoi, relived as the Chief Justice of India some four months ago, was back in the news last week when he took oath as a newly nominated member of the House of Elders, the Rajya Sabha. Raised eyebrows there were many, but the former Chief Justice was confident that the critics of the switch would soon be silenced. The magic wand, not his words, would soon clear the air, the learned former CJI suggested. Perhaps not the first time such a switch from the highest court in the country to the restful pastures of the house of elders has been made. For the records has been repeatedly pointed out Chief Justice the Ranganath Mishra was inducted into the Rajya Sabha during Mr Rajiv Gandhi’s time as Prime Minister and Mishra, in any case had joined the Congress before his being elected to the Rajya Sabha. The difference in the Gogoi appointment now lies in the fact that he was nominated by the President within four months of his retirement whereas Mr. Mishra waited in the wings for over nine years for induction into the upper house, as an elected member not that the court has traversed a straight narrow path in the years gone by. Mrs. Gandhi’s Emergency saw the court subjected to unwarranted and unwholesome moves including supersession and even causing the resignation of one of its more illustrious judges, Mr. H.R. Khanna. Mrs Gandhi had openly spoken in favour of a committed judiciary, a la Franklin D. Roosevelt, US President of the 40s. These seemingly unrelated events illustrate the stress and strain the Supreme Court has undergone for instance in the 70s and the early 80s, emergency years and the aftermath.

A notable one was the resignation from the Supreme Court, in order to join politics by Justice Bahrul Islam. The second was signaled by Justice D. Chinnappa Reddy by underlining socialism as a key component of the constitution and the country. And the third was the Supreme Court judgment in the coking coal case by a Bench comprising Justices P.N. Bhagwati, Reddy, E.S. Venkataramaiah, Bahrul Islam and A.N. Sen. The circumstances and the motives which led to Bahrul Islam’s resignation from the court cannot but depress. Justice Islam resigned from the apex court on January 13, 1983. His inclusion as a Congress candidate for the Barapeta parliamentary seat in Assam (Mr. Gogoi’s State) was announced on January 14. The fact is that on January 12 Mr. Islam was included in the party list, causing many eyebrows to be raised as to how a sitting judge could figure in a party list of candidates. That’s how Justice Islam’s resignation materialized.

The implications are clear. Here was a Supreme Court judge clearly in touch with a political party to become a Lok Sabha candidate even while sitting on the bench. It would strain credulity to believe that Congress had considered Mr. Islam’s candidature without his knowledge. I shall leave justice Chinappa Reddy out of the present discourse for his was basically a doctrinal approach to the Constitutional process. Mr. Reddy viewed the Constitution in Marxist terms of class struggle and he would indeed become relevant when and if the BJP MP Mr. Rakesh Sinha, acts on his already announced intention to move a Constitutional amendment to remove the word Socialist from the preamble gets deleted. Mr. Gogoi’s actions on the other hand cast doubt on the court as a whole; judgments will now be attributed to political motives. As the highly regarded columnist Pratap Bhanu Mehta notes in an era where ordinary citizens are struggling to safeguard their citizenship rights and basic constitutional standing Justice Gogoi’s actions say to us: The law will not protect you, because it is compromised, the court will not be a countervailing power to the Executive because it is supreme, and judges will not empower you because they are diminished men. Think of the number of potentially interesting justices whose concerns have been derailed by mere innuendo, most recently Justice A.P. Shah and Gopal Subramanian. Think of the arbitrary transfer of Justice S. Murlidhar. Set Justice Gogoi’s nomination to the Rajya against this background. Here is a Chief Justice who was accused of sexual harassment, the alleged victim being removed from service after an internal scrutiny and restored now to her job, as Gogoi departed with dues paid retrospectively.

To conclude, let me quote retired Justice Madan B Lokur: there has been speculation for sometime now about what honour would Justice Gogoi get. In that sense the nomination is not surprising, but what is surprising is that it came so soon. “This redefines the independence, impartiality and integrity of the judiciary”.

Incidentally in January 2018 Justice Gogoi, Lokur, Chelmeshwar, and Kurien Joseph, the most senior judges of the Supreme Court then, had in an unprecedented move called a press conference to question the conduct of the then Chief Justice Dipak Misra. Gogoi had surprised his colleagues then because he was the nest CJI in succession. A fall indeed.