Gogoi in Rajya Sabha

The independence and impartiality of the judiciary hinge on whether it can keep the executive at arm’s length. Though the Constitution says that the State shall take steps to separate the judiciary from the executive, successive Union governments have chosen to disregard this Directive Principle. In February last year, the government, in reply to a question in the Rajya Sabha, had ruled out a cooling-off period for retired judges before their appointment to tribunals or commissions. This stand was diametrically opposite to the view expressed by senior BJP leader Arun Jaitley in 2012, when the UPA-II was in power. Backed by then party chief Nitin Gadkari, Jaitley had claimed that pre-retirement judgments were influenced by the desire for a post-retirement job. Both had sought a two-year gap between a judge’s retirement and his subsequent appointment by the government.

Since a political party usually has one opinion when it’s in the Opposition and a contrasting one when it’s at the helm, it’s hardly surprising that Justice Ranjan Gogoi has been nominated to the Rajya Sabha, just four months after he retired as the Chief Justice of India (CJI). In fact, there is an air of inevitability about post-retirement sinecures for those holding constitutional positions.

The Congress, which is raising a hue and cry over Justice Gogoi’s nomination, is in no position to take the moral high ground as it had itself sent former CJI Ranganath Misra to the Upper House on the party ticket in 1998. It was the Justice Misra Commission of Inquiry, set up by the Congress government months after the 1984 anti-Sikh riots, that had given the clean chit to the party and dubbed the violence as a ‘spontaneous reaction of the people at large.’ Less than two years after he retired as the CJI, Justice Misra had been appointed the first chairperson of the National Human Rights Commission by the Narasimha Rao-led Congress dispensation. A cooling-off period alone, however, can’t make the judiciary impervious to the executive’s pulls and pressures. It all boils down to following the Constitution — invoked these days at the drop of a hat — in letter and spirit.