Context

A petition filed in the Supreme Court conveyed the “widespread disquiet and unease” triggered by the nomination of the former chief justice of India Ranjan Gogoi to the Rajya Sabha and sought the court’s intervention for extending the post-retirement restrictions imposed on the office of the Lokpal to former judges as well

Background:

• The petition filed by academic Madhu Purnima Kishwar contended that former judges should be insulated from “post-retirement allurements” like the Lokpal, as the country otherwise risked having public faith in an independent judiciary dry up.
• The petitioner also noted how unlike in the case of the Comptroller and Auditor-General and Chairman and Members of the Union and State Public Service Commissions, the framers of the Constitution did not make any explicit provisions restricting the post retirement acceptance of public offices by the judges of the Supreme Court and high courts as “they (former judges) were expected to conduct themselves in such a manner even after their retirement so as not to create an adverse impression about the independence of judiciary”.
• Justice Gogoi’s acceptance of the nomination was “befuddling” as he had “himself pronounced that there is a valid strong viewpoint that post-retirement appointment is itself a scar on judicial independence of the judiciary”.
• Justice Gogoi was one of the four apex court judges who had held the January 12, 2018, press conference demanding that the independence of judiciary from the executive be safeguarded.

Knowing Constitutional Provisions:

• There is no law or constitutional provision that prohibits such a nomination. Nor is this an unprecedented decision by the government.
• Still, it is not a common practice that a government nominates or appoints a former Supreme Court judge or even a high court judge to some office within months of her or his retirement.
• But there is a recommendation of the Law Commission of India that considered the question of such nominations and appointments before forming a negative opinion.
  • It was the 14th report of the Law Commission of India,and was made in 1958 when Pandit Jawaharlal Nehru was the prime minister of the country.
  • In paragraph 28 of the report, the Law Commission says, "we have noticed the only bar imposed on a Judge of the Supreme Court who has retired is that he shall not thereafter plead or act in any Court or before any authority.
  • In the result some Supreme Court Judges have, after retirement, set up chamber practice while some others have found employment in important positions under the Government. We have grave doubts whether starting chamber practice after retirement is consistent with the dignity of these retired judges and consonant with the high traditions which retired judges observe in other countries."
• Section 8 of the Lokpal Act mandates that a retired chairperson or member of the Lokpal, an anti-corruption ombudsman, would be ineligible for reappointment, not hold diplomatic posts or be made an administrator of a Union Territory, and observe a five-year moratorium from contesting elections.

The formula to elect Rajya Sabha Members:

• The Rajya Sabha or the Upper House of Parliament is modeled after the House of Lords in the United Kingdom.
• The Rajya Sabha currently has 245 members, including 233 elected members and 12 nominated. As per the constitutional limit, the Upper House strength cannot exceed 250.
• Nominated members of the Rajya Sabha are picked by the President of India. These MPs are luminaries from the world of economics, sports, literature, art, social service etc.
• While Lok Sabha members are elected directly by the voters, Rajya Sabha members are elected indirectly by the people, that is, by the MLAs.
• Every Rajya Sabha MP has a tenure of six years and elections to one-third seats are held every two years.
• According to Section 154 of the Representation of the People Act 1951, a member chosen to fill a casual vacancy will serve for the remainder of his predecessor's term of office.
• Members of a state's Legislative Assembly vote in the Rajya Sabha elections in what is called proportional representation with the single transferable vote (STV) system. Each MLA’s vote is counted only once.
• In this system, MLAs don’t vote for each seat. If that were the case, then only ruling party representatives would make it through. Instead, the MLAs are given a paper with the names of all candidates
• The formula simply is [(Number of MLAs X 100) / (Vacancies + 1)] + 1.

Supreme Court retirees & appointments in the government:

• Post-retirement appointment of judges by the government is not new.
• As per a study, Supreme Court retirees between 2002 to 2012, over 70 percent of retired Supreme Court judges got appointments by the government.

Why Ranjan Gogoi’s appointment is an issue

• Ranjan Gogoi’s tenure as the Chief Justice of India was perhaps one of the most fractious tenures that one has seen.
• This is primarily because of two incidents:
  • the sexual harassment allegations against him during which his conduct was far from exemplary, particularly for being on the benchin his own cause
  • his supervision of the NRC in Assam where he was more executive-minded than the executive.
• Very few Chief Justices have done as much to belittle the cause of judicial independence and fairness as Gogoi.
• With this appointment, no pretence remains either on the side of the government or the judiciary that judicial independence needs to be seen to be protected.
• Any government would know that the appointment of this nature would damage the perception of judicial independence.
• Any judge would know that his or her acceptance of such a post would corrode the moral fabric of the judiciary even further.
• But it’s clear—homilies aside, neither really care about an independent judiciary.
• The technical criteria for nomination of MPs to the Rajya Sabha by the President is special knowledge or practical experience in literature, art, science or social service.
• Are there some qualities of Gogoi’s that we are unaware of that makes him eligible?

 Conclusion:

For an institution like the Supreme Court, what matters the most is its independence as well as the perception of independence. This requires a high standard of conduct and a certain level of restraint from judges in order to maintain public confidence in the judiciary.