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Indian politics makes a mockery of justice

R Krishnakumar
Filed on March 19, 2020

Kurian Joseph said the nomination of Gogoi had 'shaken' the common man's confidence in judicial independence.

The nomination of Ranjan Gogoi, former Chief Justice of India (CJI), to the upper house of the Indian parliament has led to familiar reproval for the Bharatiya Janata Party-led government, pushing the party's leaders and supporters to defend the move primarily with arguments built on whataboutery.

'Familiar' is the operative word here; this is a regime that has faced a series of charges regarding the undermining of India's institutions, in six years of two governments led by Prime Minister Narendra Modi. Gogoi's nomination has, again, left the BJP's official spokespersons with a busy couple of weeks but they seem to have, with experience, figured out a few ways to defend the indefensible.

The key message this nomination sends out, however, is one that validates the fears and despair over judicial independence which is increasingly perceived as under threat. The move is in conflict with the principle of separation of powers between government organs which is integral to the idea of democracy.

The timing of the nomination substantiates the perception and calls into question the judiciary's independence from the state. That Gogoi has been nominated to the Rajya Sabha only four months after his retirement makes this different from previous cases that are being cited in defense. The election of former CJI Ranganath Misra to the RS on a Congress party ticket in 1998, for instance, happened six years after his retirement. Misra was elected as an opposition party nominee, when a BJP government was in power.

The appointment of former CJI P Sathasivam as the governor of Kerala, in 2014, four months after his retirement, had also led to criticism of the then Narendra Modi-led government.

That Gogoi had led supreme court benches that delivered judgments on key cases with the central government as a party - including the ones that favoured the Hindu side on the Ayodhya land dispute and struck down review petitions on the Rafale fighter plane deal - has also sharpened criticism against the nomination. Unlike in other instances of SC judges getting nominated to the RS, the nod for Gogoi drives allegations over its links to the recency of his role in these 'controversial' judgments.

Former SC judge Kurian Joseph said the nomination of Gogoi had 'shaken' the common man's confidence in judicial independence. Joseph, along with SC judges Gogoi, Madan B. Lokur, and J Chelameswar, had held a joint press conference in January 2018 to question the arbitrary allocation of sensitive cases to specific benches. Gogoi, at the time of the press conference, was next in line to be the CJI.

In March 2019, a bench of the apex court that Gogoi headed had termed post-retirement appointment of judges in tribunals a "scar on judicial independence". Joseph said he was surprised that Gogoi who had once exhibited a "courage of conviction" to uphold judicial independence could make this "compromise". The transformation the former CJI has undergone in public imagination, from whistle-blower to state nominee, has been quick.

The criticism by the opposition Congress and the Left parties - they have demanded that the nomination be rescinded - is yet to run its course. Gogoi has said he would explain, later, why he accepted the offer. He has also been quoted in media reports as saying that he would try to be the voice of the judiciary.

The concerns over matters of the judiciary being influenced by the state's interests are real. In February, Justice S Muralidhar was transferred from the Delhi High Court to the Punjab and Haryana High Court, hours after the judge criticised Delhi Police for having failed to initiate action against political leaders who made hate speeches that allegedly set off communal violence in northeast Delhi.

The government said due processes were followed in the transfer that was also based on a prior recommendation made by the SC Collegium but the midnight order of transfer did come while the judge was hearing a sensitive case.

The undesirable possibility of retired judges being employed in positions that are attached to governments involves a systemic problem that has been a matter of debate for decades. The Congress party has also faced serious allegations regarding political nominations of retired judges.

The threat of this influence, however, had not taken these proportions. Allegations of quid pro quo appointments and controversial 'punishment transfers' could be a decisive blow at a time India is grappling with a threat of institutional erosion. They signify a culture driven by fear and favouritism and send out a message, asking men and women in these institutions to make a choice.

These are concerns over an institutional legacy that is defined by the trust it has inspired over decades. The nomination of Gogoi becomes contentious because it's a brazen subversion of this legacy, a blow to those of us who still preserve this trust. Is the recurrence of these subversions also normalising them? Are these arguments enough to make a government rethink on its inherent ideological designs? Can we let idealism and judicial independence be mere punch-lines that prop memorial lectures? This could be the time to keep the questions alive, even if they don't always lead to answers.

R Krishnakumar is a senior journalist based in Bengaluru, India


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