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The Politics of being Apolitical

Updated: Sep 7, 2021

Recently the appointment of the former Chief Justice of India as a Nominated Member of Rajya Sabha( where the Government enjoys a Minority) has started a controversy where people have blamed him for compromising judicial independence for his personal good and his own colleagues have unleashed sharp criticism on him. On the day of his oath-taking, the opposition Members of Rajya Sabha, many who have pleaded before him in the court were seen shouting slogans of ‘Shame’ at him.

While people were busy taking on him chapter and worse, Justice Gogoi was seen Giving Interviews to national TV channels clarifying his stance and defenestrating any and all allegations put up against him.

As a person who had sparked a controversy even before his appointment as the CJI when he along with 3 of his colleagues attended an unprecedented press conference where he alleged malpractices in the office of the then CJI Deepak Misra and criticised the collegium system of Appointment, Justice Gogoi was seen as a ray of Hope in the Indian Judicial system. His tenure as CJI was filled with even more controversies which pointed similar or even profound allegations at him. These include the Rafale judgement held just before the Lok sabha Elections, the Electoral Bond Case, the Ayodhya Case and The delay in hearing the CAA challenge and Habeas Corpus petitions from Kashmir Valley.

He was also seen as a hypocrite where he himself criticised the collegium system of appointment and didn't reform it in his own tenure.

Coming back to his appointment as a Rajya Sabha Member, The act itself raises few questions on the idea of Post-retirement appointment of Judges, Whether Judges should be appointed to any Political or Apolitical position post their retirement ? Would the Same allegations had been raised against Mr. Gogoi had he been given some other assignment such as The Law Commission or the NCLAT which is vacant or the NHRC which is due to be vacant in December ?

The appointment of ex-CJI’s to Political positions isn't a new concept, we have the following examples-

Justice Hidayatullah- He was elected as the Vice President of India after 9 years of his retirement as CJI.

Justice K.S. Hegde- He was elected as a member of parliament and further as the speaker of lok sabha on a Janata Party ticket nearly 4 years after his retirement.

Justice Lodha- He was the Chief Justice of Assam and served 2 terms as a member of parliament on a BJP ticket.

After examining these examples, we can see that historically Judges have held Political positions but the only dissimilarity is that they all entered politics or held Legislative or executive positions at least a few years after their retirement.

Nomination to the Rajya Sabha is seen as a Non Political one and as per the Constitution Of India, can be given to people having excellence in various walks of life namely- Literature, Science, Art and Social Service. After Reading the constitution one can easily say that Justice Gogoi didn't have any prominent achievement in the Field of Literature, Science and Art, It can also be implied that serving as The Chief Justice of India doesn’t make you a devout social servant, Practically speaking, you are just doing your Job for which you are paid a fancy salary.

It has been said that Justice Gogoi had decided cases in the favour of the Government and ‘Against popular public opinion’, He presided over his own Case and that too on a Saturday, He ruled in favour of the Government in the Rafale cae, He ruled in favour of the ruling party in the Ayodhya Case where one party was asked to prove complete ownership and the other was favoured upon mere Belief.

It was said that ‘Justice should not just be delivered, but felt as delivered’. I believe that while justice must be felt as delivered, it must be done as per law, if public opinions start to drive judgments in someone’s favour or against, there will be anarchy and the very concept of Justice and Law will be jeopardized.

His critics might not see the fact that He had 2 more judges in the bench while ruling in his Sexual Harassment case which lacked evidences and witnesses, he was not even a signatory to the Judgement as when 3 judges comprise a bench, 2 can start the proceedings of a case.

Talking about the judgements in the Rafale case and Ayodhya Case, The decisions may be good or bad but were unanimous and there were other judges as well who could've easily overruled his decision by majority if they wanted to.

He is even criticised to start and generalise the ‘Sealed cover Jurisprudence’ in his term, I believe that specific to the Rafale case, the sealed cover was a necessary evil as it contained the cost of the accessories to the Rafale Aircraft ( missiles, ammunition etc.) none of us would've wanted this sensitive information to go into wrong hands and cause a national security threat, that too through the judiciary.

It is known to everyone that Justice Gogoi had clearly said that He didn’t have time for Kashmir as he was busy with the Ayodhya case, it is less known that he had on the very next day allocated the case to another bench, the decisions henceforth , good or bad, are the responsibility of that bench and certainly not Justice Gogoi.

Talking about a cooling off period for judges, we must keep in our mind that we have statutory bodies like the NCLAT, NGT, CAT etc. which are to be chaired by retired Judges and have a retirement age of 70 years and if we count in the cooling-off period which at least can be imagined as 2 years then at the time of retirement the judge will be already 67 and would be able to serve at these bodies for just 3 years compared to the current 5 years. It is subject to exhaustive debates that these changes can be brought into the law.

The above-mentioned positions come with a monetary package which is almost equal to the package of the CJI or a Member of the Rajya Sabha. They are positions where you still have to take decisions and can play a very important role in people’s lives , However, a Rajya Sabha seat gives you a vote in the Upper house, miniscule time to speak in debates and just 60 days a year to voluntarily participate in the session.

At the end it must be left up to the readers whether this appointment was Progressive or regressive for the country.

*Opinions expressed above are the author’s personal opinions and do not intend to harm anyone’s image.

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