Salman Khurshid’s Letter to CJI Bobde on Gogoi’s RS Nomination

“Public perception as indeed perception amongst the judicial community nudges for a response,” writes Khurshid.

Salman Khurshid’s open letter to CJI SA Bobde:

Respected Chief Justice Bobde,

There has been a steady flow of criticism and indignation expressed since the news of Chief Justice Ranjan Gogoi getting nominated to Rajya Sabha was made public. Several former Supreme Court judges including some who were known to be reasonably close to him have spoken in public with unprecedented candour.

Several of my lawyer colleagues have expressed their dismay. Some of those will encounter the former chief justice in his new avatar as member of parliament. He, in turn, will discover what it feels to be judged by others.

Of course, he has briefly given his point of view about joining hands with the legislature to participate in nation-building. A more detailed version of his opinion we will surely be told as he settles in after taking oath of office.

In an interview, he seems to have hinted at a lobby of Lutyen’s lawyers being anathema to judicial independence and that some out spoken former judges having much to explain.

‘Consciously Declined to Comment’

I was asked by news agencies to say something on this development. My reply was that the Court is too dear and irreplaceable in my esteem to permit any unintended damage beyond what some people say it already has suffered. For each issue that followers of the Court find disturbing there are innumerable, admirable dimensions of its performance as the temple of justice.

For each judge whose demeanour or judicial conscience makes us uneasy there are innumerable judges who surpass all expectations of compassion, intellectual integrity, unimpeachable personal morality and ‘sheer brilliance of the mind’.

Like all institutions, it is larger than all the men and women who occupy it.

I, therefore, consciously declined to make any comment. But the barrage of comments that have been made by responsible and respectable persons persuades me to break my silence as a citizen and former minister for law and justice.

‘Is There Something Wrong With the Judicial System?’

Is there something wrong with our judicial system? There can be no gainsaying that there is. But why the Courts alone, is our entire society not under stress and adrift? The courts can be the ballast to keep the ship of state steady.

In recent months our polity is faced with lack of consensus on issues of collective life, both natural as well as contrived. We know that these differences cannot always be settled by counting heads democratically. Indeed, that may well be part of the problem rather than the solution.

Constitutional government has its moorings in majority but not just in that if we understand the Constitution. If we understand that we will understand how integral constitutional courts are to that enterprise. We swear by the Constitution and hold the national flag as the symbol of our national esteem.

But none of these land marks of our patriotism will be rendered meaningless without the assurance and comfort of our connect with and faith in the judiciary.

I know that there are perfectionists amongst us who advocate zero tolerance of aberration in judicial conduct and performance. But another view is that none of us are perfect and so is the judiciary that reflects society.

The higher standards that we apply to the judiciary as the beacon of rectitude are agreed consensual principles. But it might not help to highlight every short coming or failing so long as the internal corrective system responds.

Of late there have been questions about several matters but we need to be clear how much can be addressed without hurting the system and what hurts to the extent that calls for public redressal and correctives.

The Nudge for a Response

Distressed as we might be about recent developments it is really difficult to say with confidence that the critical titling moment has come or that the sunshine of debate will kill the virus. Equally assuming that we are impervious, is it unbecoming and disloyalty to the institution we cherish.

Furthermore, public perception as indeed perception amongst the judicial community nudges for a response.

It is with a heavy heart and in view of the above concerns that I urge your Lordship as the head of the judicial family and a critical balancing point in constitutional governance to take cognisance of the agony and address concerns about independence of the judiciary as indeed real or imagined perceptions on that score.

I am only adding the voice of my conscience to what must be troubling you silently and making it an open letter so that others can share your burden.

With best wishes to give you strength in these trying moments.

With profound regards,
Salman Khurshid

(Salman Khurshid is a designated senior advocate, Congress party leader, and is a former Minister of External Affairs. He tweets @salman7khurshid. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)