Modi Government Perfects Congress ‘Game’ by Sending Gogoi to RS

It is up to honourable judges to decide to be true to their oath and perform duties “without fear or favour”.

How will the tenure of Chief Justice of India (CJI) Ranjan Gogoi be weighed in the future?

(Photo: Aroop Mishra/The Quint)

Indian President’s decision to nominate former Chief Justice of India, Ranjan Gogoi, to the Rajya Sabha underscores that political hypocrisy has become an article of faith for the ruling Bharatiya Janata Party.

For a party whose one-time legal hawk, the late Arun Jaitley, remarked not in a very distant past: there are “two kinds of judges - those who know the law and those who know the Law Minister,” and that there must be gap of “two years after retirement”, this decision establishes that proclamation—or even intention—is not practice for the party.

What was stated when the party was in opposition was mere posturing and is certainly not being followed since the BJP came to power in May 2014.

• Has Modi government rewarded former CJI Ranjan Gogoi for suitable verdicts?
• When the BJP was in opposition, it vouched for judicial independence but it was mere posturing and is certainly not being followed since the party came to power in May 2014.
• This is the second occasion the BJP has appointed a retired CJI to plum post. In September 2014, retired CJI P Sathasivam was appointed Governor of Kerala.
• Congress did something similar with Justice S Fazl Ali, Justice Baharul Islam, and Justice Ranganath Misra.
• By continuing this practice, Modi government, too, is subverting the judicial processes.
• It is up to honourable judges to decide to be true to their oath and “bear true faith and allegiance to the Constitution” and perform duties “without fear or favour”.

BJP’s Hypocrisy is Brazen

Besides Jaitley, then party president and currently a serving cabinet minister, Nitin Gadkari, too, stated at the same September 2012 event: “I say this with a lot of responsibility that even before they retire, it is decided for Supreme Court and High Court judges as to which Commission they will go and join”.

While Justice Gogoi has technically not been appointed to a ‘Commission’, his brother, Air Marshall (Retd) Anjan Kumar Gogoi, was appointed full-time non-official member of the North Eastern Council (NEC) in February. It will, of course, be argued that the retired Air Force officer's familial links cannot prevent his appointment if he is deemed suitable and considered a competent professional. The appointment, however, was too much of a coincidence, especially in the light of events in the former CJI’s career.

This is the second occasion the BJP has appointed a retired CJI to plum post. In September 2014, barely months after Narendra Modi became prime minister, retired CJI, P Sathasivam, was appointed Governor of Kerala. The retired chief justice was the first non-political personality appointed to a gubernatorial post by the Modi government.

The Case of Justice Sathasivam

Justice Sathasivam remained in office till September 2019 when his five year tenure ended. In the warrant of precedence, the office of Governor, as well as that of nominated member of Rajya Sabha, is lower than the office of the CJI.

Among various cases Justice Sathasivam presided over, was the one in which he presided over a bench which provided much-required relief to the then home minister of Gujarat, Amit Shah, in the custodial killing case of Tulsiram Prajapati. Bench scrapped a second FIR or police complaint against Shah in the fake encounter killing case, arguing it was linked to the bigger Sohrabuddin Sheikh killing case and did not need to be separate. Justice Sathasivam, when asked if it was a quid pro quo deal, denied it before adding, “any other judge would have given the same verdict.” That no other judge went on to become Governor too is a matter of record.

At the very least, the appointments of Justice Sathasivam and Justice Gogoi have lowered the dignity of the CJI’s office. The damage, however, is far greater because it casts aspersions on the fairness of judicial verdicts.

Jaitley, it must be recalled, claimed that “pre-retirement judgements are influenced by a desire for a post-retirement job” when the BJP was in opposition. By continuing this practice, Modi government, too, is subverting the judicial processes.

Has BJP Perfected the Game Congress Started?

With this as backdrop, it is good to recall that some of the most politically contentious cases in recent years were decided during the period Justice Gogoi was CJI and he presided over those Benches. In this period, he was also ‘master of the roster’ and decided which judge shall not hear particular case and vice versa. Only the faithful will question any inferences that link judgements they presided over, with post-retirement appointments of Justices Gogoi and Sathasivam.

Like always, the BJP shall be liberal in providing 'past evidence' of similar appointments to argue that this is the norm and not exception. Ruling party faithful are certain to dig out details regarding appointments from the past, from Justice S Fazl Ali, the first Supreme Court judge deputed to a Raj Bhavan, of Orissa, as early as May 1952, to the peculiar case of Justice Baharul Islam who began as an advocate in the Assam High Court in the early 1950s and went on to serve a decade long term as Rajya Sabha member till 1972.

Subsequent to this, Indira Gandhi’s government appointed him a judge in same court he had practised in. Justice Islam rose to become Chief Justice of Gauhati High Court by 1979 and thereafter retired in a few months. Contentiously, he was thereafter appointed to the Supreme Court of India by the Gandhi regime on 4 December 1980, an unprecedented nomination for a retired Judge.

Justice Islam, thereafter, heard the case involving the then Congress chief minister of Bihar, Jagannath Mishra, in the Patna Urban Cooperative Bank scam case and provided him with crucial relief.

Thereafter, the judge resigned from the apex court and became member of Rajya Sabha once again.

The case of Justice Ranganath Misra will also be cited. Paradoxically, his name cropped up not just in the matter of whitewashing the 1984 anti-Sikh pogrom, but also for reportedly providing crucial suggestions to the Rajiv Gandhi government in the Ram temple matter.

Isn’t BJP Supposed to be a Party with Difference?

The question which BJP faithful will certainly frame now is, if Jawaharlal Nehru, Indira Gandhi and Rajiv Gandhi could do it, how can the Modi government be faulted? Not that it matters, but can one ignore that Justices Islam and Misra became lawmakers as Congress party nominees and not in the 'neutral' nominated category that has been chosen for Justice Gogoi? Furthermore, can one ignore that Justice Misra became Congress member of Rajya Sabha seven years after retiring as CJI and that too when the party was in opposition?

Importantly, BJP was supposed to be a ‘party with a difference’. Or, was this too a jumla, a turn of phrase, fabricated by the first saffron master of catchy political vocabulary—Lal Krishna Advani?

Unless he turns down the government offer, Justice Gogoi will unfortunately collaborate with BJP in transmitting a crucial message to serving judges at all levels: deliver ‘suitable’ verdicts, rest assured of your future.

Can Judges Perform Duties Without Fear or Favour?

When allegations of sexual harassment were levelled against Justice Gogoi, speculations over the Ayodhya matter cropped up in a private conversation. A senior advocate at the apex court remarked that the republic can have faith only in those judges who “have no past to hide” and are “not concerned about securing their futures”.

Despite lofty ideals regarding insulating judiciary from political pressure as publicised by BJP when in opposition, appointments like Justices Gogoi and Sathasivam are aimed at making judges subservient to the political leadership.

It is up to honourable judges to decide to be true to their oath and “bear true faith and allegiance to the Constitution” and perform duties “without fear or favour”.

(The writer is an author and journalist based in Delhi. He has authored the book ‘The Demolition: India at the Crossroads’ and ‘Narendra Modi: The Man, The Times’. He can be reached @NilanjanUdwin. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)