Updated: March 20, 2020 12:04:24 pm
We should be deeply grateful to Justice Ranjan Gogoi. His conduct has disabused us of any illusions we might harbour about the legitimacy of the Indian Supreme Court. The government, in a brazen contravention of all propriety, has given him a nomination to the Rajya Sabha. He has been shameless enough to accept it. In doing so, he has not just cast doubt on his own judgement, character, and probity; he has dragged down the entire judiciary with him.
The authority of the Supreme Court of India rests squarely on two things: The cogency of its reasoning, and the integrity of its judges. Justice Gogoi’s track record as justice was to take a wrecking ball to the Indian Constitution and smash it to smithereens. He, inter alia, made redundant important constitutional lodestars: Habeas corpus, non-discriminatory citizenship, the evidence act, federalism, free speech. He was more executive-minded than the executive in corruption cases. His reasoning in the Ayodhya case was infinitely worse than the Allahabad High Court. His ad hominem remarks were fit for authoritarian memes. His penchant for sealed covers, even as allegations floated over what meaning “covers” might have from him, made a mockery of transparency. He assigned cases to benches in ways that seem to rig the game. And then he committed the ultimate sin: Became a judge in his own cause. He was Chief Justice and should have known better.
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This is the shining star of the judiciary the government has rewarded. A justice who feigned ignorance of the basics of constitutional law could hardly be expected to follow convention, propriety or conflict of interest. There is no explicit prohibition against judges accepting Rajya Sabha nominations. But the presumption against these kinds of appointments was strong; indeed, Justice Gogoi himself had authored a judgment which acknowledged that post-retirement jobs could bring the judiciary into disrepute. The very fact that a judge accepts such an appointment could cast doubt on his judgements. It would signal that the judiciary is not independent, but lives for crumbs thrown by the executive.
A paper by Shubhankar Dam, Madhav Aney and Giovanni Ko, and earlier work by Shylashri Shankar, collected systematic data to show how judges proactively become pro-executive as they near retirement. It is often thought that the solution to this problem requires explicit prohibition on any post-judicial appointment, including commissions of inquiry. The solution is not that simple; after all, there are many positions that require judges to be appointed. Moreover, in financial terms, the incentives are not that clear-cut. Most Supreme Court judges, apart from their pensions, can easily make a lucrative living on the arbitration circuit. Many do so.
The problem is much deeper than that of incentives. Even powerful people become habitually disposed to be on the right side of the ruling dispensation, they like being in circuits of power, and so the sources of ideological abdication are more subtle. Increasingly, even more so than in Indira Gandhi’s days, deep ideological infiltration of the judiciary, where it is expected to march in lockstep with the overall ideological aims of the government, cannot be ruled out. Justice Gogoi’s actions never had the cogency of reasoning; now he has given more explicit reason to doubt his integrity.
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Think of the number of potentially interesting justices whose careers have been derailed by mere innuendo, most recently Justice AP Shah and Gopal Subramanium. Think of the arbitrary transfer of Justice S Muralidhar. Now set Justice Gogoi’s nomination to the Rajya Sabha against this background. Here is a Chief Justice whose record is unmatched in the annals of constitutional perfidy. Here is a Chief Justice who was accused of sexual harassment. The train of developments in that case casts a deep cloud over Justice Gogoi. And yet, or perhaps because of this, the government chooses to reward him with a Rajya Sabha seat. We live in an era where integrity and innocence can be destroyed by a mere whisper. But great crimes done to protect the executive have the imprimatur of virtue attached to them.
The government is ruthless in its aims. It thinks all constitutional forms are just that: Forms that we should expose as being powerless. It will, no doubt, as it does, use ambiguous precedents set by previous governments, in cases like Baharul Islam, and Ranganath Misra to justify its actions. But that is specious reasoning: Misra did, retrospectively, cast doubt on his own work as an inquiring judge in the 1984 riots case. But he formally joined the Congress and was given a nomination nine years after retirement, when the Congress was in the Opposition. It will be ironical to use Indira Gandhi’s actions as a justifying precedent for anything pertaining to the judiciary. Let us concede that previous regimes have not been the strictest about the propriety of giving executive rewards to constitutional functionaries. Yet Justice Gogoi’s nomination to the Rajya Sabha is in a different league, in light of his judicial history and the alacrity with which he has been rewarded.
But why blame the government? This government’s greatest success has been to show that it is the government we deserve. If someone who has held the office of Chief Justice, with all the world’s protections and perks, is willing to crawl to the government’s tune, for a position that, incidentally, happens to be drastically lower than that of a Chief Justice in the order of precedence, what can one say? What can one say of a legal culture – where judges usurp great power in appointments, and senior counsel enjoy possibly the maximum social immunity Indian society affords to any profession — that has no effective way of sanctioning this kind of behaviour? The call for more laws is often an evasion. Those parts of the government which have the maximum autonomy, protection and prestige, folded the fastest. No parchment barriers can ultimately hold against a contagion of venality or ideological commitment. The government is brazen. But the point of its brazenness is to show how small we are.
Justice Gogoi’s actions are not simply a case of one bad apple. His actions will now cast doubt on the Court as a whole; every judgment will now be attributed to political motives. In an era where ordinary citizens are struggling to safeguard their citizenship rights and basic constitutional standing, Justice Gogoi’s actions say to us: The Law will not protect you because it is compromised, the Court will not be a countervailing power to the executive because it is supine, and Judges will not empower you because they are diminished men.
The writer is contributing editor, The Indian Express.
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