The three branches of government, in any functional democracy, must always be kept separate from one another. The judiciary, in particular, has an enormously important role. It is, in a parliamentary democracy, the only real check on majoritarian instincts of any sort. It must not only remain independent, but be seen to remain independent — or else faith in the structures of governance, and therefore in the Republic itself, will collapse. It is against this high bar that the decision to send former chief justice of India Ranjan Gogoi
to the Rajya Sabha must be evaluated. While Justice Gogoi, given his vast experience and erudition, will no doubt be a valuable addition to the Upper House, it is nevertheless unfortunately the case that when judged against the standards considered appropriate for a well-functioning democracy, his nomination must be seen as a new low for India and opens up dark possibilities for the future.
This particular nomination is more worrying than comparable occasions in the past. Justice Ranganath Misra was, for example, sent to the Rajya Sabha by the Congress party. But that was well after his retirement, and in the interim he had headed the National Human Rights Commission. Not only is Justice Gogoi’s nomination too close to his retirement — which was a matter of a few months ago — but his tenure as Chief Justice of India coincided with decisions on several vastly important and politically sensitive issues, including the Rafale deal and Ayodhya. These decisions were controversial but nevertheless seen as settling the matters in question. They will now be revisited by public opinion
and history in a manner unquestionably detrimental to confidence in the judiciary as an institution.
Beyond this particular case, it is hard to avoid the conclusion that the government is seeking to send a clear message to sitting judges: If they play along, they will be rewarded, but if they do not, then there will be consequences. One judge of the Delhi High Court who went against the executive on the Delhi violence, Justice S Muralidhar, was swiftly transferred. While the government claims that it merely expedited a process already underway, the message was nevertheless clearly broadcast to the judiciary in general. The prospect of post-retirement jobs has been for too long a carrot dangled in front of judges, and some institutional fix for this problem needs to be found. Perhaps judges could retire later, as is the case in countries like the United States, where the Supreme Court
justices choose their own time of departure.
The preservation of judicial independence, in fact and in perception, must be of the utmost importance if India is to continue to operate under Constitutional principles. The Supreme Court, in particular, is the location not just for high and sensitive matters of state but also the only arbiter of disputes that touch upon India’s federal structure. It cannot be seen as being too close to the Union government of the day. Independence is not just about who sits on the Bench, which judges too often focus on to the exclusion of other aspects. It is also about how and when they leave the Bench, and what follows after.