A fall, indeed

Mr. Ranjan Gogoi, relived as the Chief Justice of India somefour months ago, was back in the news last week when he took oath as a newlynominated member of the House of Elders, the Rajya Sabha. Raised eyebrows therewere many, but the former Chief Justice was confident that the critics of theswitch would soon be silenced. The magic wand, not his words, would soon clearthe air, the learned former CJI suggested. Perhaps not the first time such aswitch from the highest court in the country to the restful pastures of thehouse of elders has been made. For the records has been repeatedly pointed outChief Justice the Ranganath Mishra was inducted into the Rajya Sabha during MrRajiv Gandhi’s time as Prime Minister and Mishra, in any case had joined theCongress before his being elected to the Rajya Sabha. The difference in the Gogoiappointment now lies in the fact that he was nominated by the President withinfour months of his retirement whereas Mr. Mishra waited in the wings for overnine years for induction into the upper house, as an elected member not thatthe court has traversed a straight narrow path in the years gone by. Mrs.Gandhi’s Emergency saw the court subjected to unwarranted and unwholesome movesincluding supersession and even causing the resignation of one of its moreillustrious judges, Mr. H.R. Khanna. Mrs Gandhi had openly spoken in favour ofa committed judiciary, a la Franklin D. Roosevelt, US President of the 40s.These seemingly unrelated events illustrate the stress and strain the SupremeCourt has undergone for instance in the 70s and the early 80s, emergency yearsand the aftermath.

A notable one was the resignation from the Supreme Court, inorder to join politics by Justice Bahrul Islam. The second was signaled byJustice D. Chinnappa Reddy by underlining socialism as a key component of theconstitution and the country. And the third was the Supreme Court judgment inthe 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 motiveswhich led to Bahrul Islam’s resignation from the court cannot but depress.Justice Islam resigned from the apex court on January 13, 1983. His inclusionas 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 tohow a sitting judge could figure in a party list of candidates. That’s howJustice Islam’s resignation materialized.

   

The implications are clear. Here was a Supreme Court judgeclearly in touch with a political party to become a Lok Sabha candidate evenwhile sitting on the bench. It would strain credulity to believe that Congresshad considered Mr. Islam’s candidature without his knowledge. I shall leavejustice Chinappa Reddy out of the present discourse for his was basically adoctrinal approach to the Constitutional process. Mr. Reddy viewed theConstitution in Marxist terms of class struggle and he would indeed becomerelevant when and if the BJP MP Mr. Rakesh Sinha, acts on his already announcedintention to move a Constitutional amendment to remove the word Socialist fromthe preamble gets deleted. Mr. Gogoi’s actions on the other hand cast doubt onthe court as a whole; judgments will now be attributed to political motives. Asthe highly regarded columnist Pratap Bhanu Mehta notes in an era where ordinarycitizens are struggling to safeguard their citizenship rights and basicconstitutional standing Justice Gogoi’s actions say to us: The law will notprotect you, because it is compromised, the court will not be a countervailingpower to the Executive because it is supreme, and judges will not empower youbecause they are diminished men. Think of the number of potentially interestingjustices whose concerns have been derailed by mere innuendo, most recentlyJustice A.P. Shah and Gopal Subramanian. Think of the arbitrary transfer ofJustice S. Murlidhar. Set Justice Gogoi’s nomination to the Rajya against thisbackground. Here is a Chief Justice who was accused of sexual harassment, thealleged victim being removed from service after an internal scrutiny andrestored 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 JusticeGogoi get. In that sense the nomination is not surprising, but what issurprising 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 Courtthen, had in an unprecedented move called a press conference to question theconduct of the then Chief Justice Dipak Misra. Gogoi had surprised hiscolleagues then because he was the nest CJI in succession. A fall indeed.

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