Former Chief Justice of India Ranjan Gogoi’s nomination to Rajya Sabha, four months after his retirement, has triggered an avoidable controversy. The ex-CJI has accepted the nomination but should rethink his decision. The controversy stems from the key constitutional principle of separation of powers, whereby judiciary, executive and legislature ought to be kept separate. The dictum about Caesar’s wife being above all suspicion applies in this case, as judges having truck with other arms of government four months from retirement can lead to suspicion about how independent the judiciary really is. The government, after all, is a key litigant in Supreme Court. To avoid conflict of interest, judges must keep their distance from corridors of power.
A cooling off period for judges, for a minimum of two years if not more, is necessary. Alternatively, the retirement age for judges can be raised to 70, with no more sinecures allowed thereafter. BJP’s leading lights, such as late Arun Jaitley and Piyush Goyal, have gone on record to the effect that post-retirement jobs influence pre-retirement judgments. Justice Gogoi, therefore, may have unwittingly undermined his successors in Supreme Court by accepting the nomination. Unlike judges taking up memberships on tribunals and statutory bodies which would involve a fair degree of adjudication – their core competency – political appointments are more liable to be misinterpreted.
There have been ex-CJIs M Hidayatullah, Ranganath Misra and P Sathasivam who became vice-president (1979), Rajya Sabha member (1998) and governor (2014) respectively. Justice Baharul Islam’s retirement in 1983 and election to Rajya Sabha on a Congress ticket happened in the space of a few months, so did BJP’s appointment of Justice Sathasivam as Kerala governor. Such appointments have been unconscionable in the past and remain so in the present. Justice Gogoi still has time to rethink and the best interests of the institution he was part of until recently must prevail.
This piece appeared as an editorial opinion in the print edition of The Times of India.