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Constituent Assembly debates regarding an independent judiciary
The drafters of our Constitution wanted to ensure the independence of the judiciary to the maximum possible extent. An amendment was proposed by Prof. K. T. Shah that under Chapter IV of Part V of the Constitution (The Union Judiciary), the following new article be added:–
“102-A. Subject to this constitution, the Judiciary in India shall be completely separate from and wholly independent of the Executive or the Legislature.”
Prof. Shah’s motivation behind this amendment was to ensure separation of powers. He gave instances of how the powers of the judiciary and the executive were combined and vested in the same officer during British rule, leading to a decrease in efficiency. He also believed that no good could come of the presence of the judicial element in the legislature. He strictly believed that judges should adhere to the letter of the law as they are the final authority on interpreting such law. Such separation was necessary from the point of view of civil liberties and the general democratic character of the governance of the country.
An enlightening debate ensued, during which members explained why the amendment should be adopted or rejected. K. M. Munshi, member of the Drafting Committee, acknowledged that the separation of powers cannot be absolute, and that independence of the judiciary had already been ensured through various provisions. At one point of time, he also mentioned “I am sure he is not going to look up to any future prospects from Government after his term of Judge is over.” Some others like H. V. Kamath and B. R. Ambedkar believed that this amendment was redundant, as Article 39-A had already provided for separation of the judiciary from the executive in the public services of the state.
Finally, this amendment was rejected. But the debate shed light on the fact that each member of the Constituent Assembly wanted to ensure separation of powers and independence of judiciary to the highest level. Hence, the appointment of Mr. Gogoi to the Rajya Sabha has violated the vision which our Constitution makers harboured for our nation.
14th Law Commission Report on Reform of Judicial Administration
The 14th Law Commission Report was released in 1958. The said report examines various aspects of judicial administration like the functioning of the Supreme Court and the panchayats, separation of judicial and executive functions and delays in the judicial system. The Report also discusses the appointment of judges to government positions.
In order to preserve the prestige of the judiciary, the Report recommends that both High Court and Supreme Court judges should be barred from practice or employment under the Union or a State after retirement. While commenting upon the declining standards of the judiciary, the Report recommends that there should be no scope for expectations in the minds of the Judges, before or after their retirement, of employment by the Union or the State.
Paragraph 28 of the Report mentions how, after retirement, some Supreme Court judges have set up chamber practice or found employment in important positions under the Government. This is seen to be inconsistent with the dignity of these retired judges, especially when compared to the high traditions retired judges observe in other countries. Paragraph 29 of the Report clearly states, “But there can be no doubt that it is clearly undesirable that Supreme Court Judges should look forward to other Government employment after their retirement.”
Explaining the reasoning behind this, the Law Commission Report states, “The Government is a party in a large number of causes [cases] in the highest Court and the average citizen may well get the impression, that a judge who might look forward to being employed by the Government after his retirement, does not bring to bear on his work that detachment of outlook which is expected of a judge in cases in which Government is a party.”
“We are clearly of the view that the practice has a tendency to affect the independence of the judges and should be discontinued,” the Law Commission concluded. Sadly, this Report was never implemented. Nevertheless, it adequately analyses why the effect of such appointments is negative, and should be avoided at all costs.
Appreciation of the Appointment
While the appointment of the former CJI to the Rajya Sabha has been widely condemned across the legal fraternity, some sections have hailed this event as a unique opportunity to bridge the gap between the legislature and the judiciary. The Bar Council of India (BCI) is one such section. In a recent press release issued by its Chairman, the BCI has praised this nomination as “an ideal opportunity to portray the first hand views of the judiciary before the law makers and vis-a-versa.” It has also denounced the views of other former judges and lawyers who have criticized the appointment, citing Article 80(1)(a) of the Constitution. It believes that such “reckless comments would be an attempt to malign the image of judiciary.”
While comparing this appointment to previous instances (like that of former CJI Ranganath Misra), the BCI has tried to justify Mr. Gogoi’s nomination as being “the fittest from every point of view” because he was a direct choice of the President of India and did not join any political party, hence proving that Mr. Gogoi’s nomination was not politically motivated. Finally, the BCI has acclaimed that the nomination is “an epoch decision, which will go a long way in the process of nation building.”
The appointment of Mr. Ranjan Gogoi may be viewed as violating the ethical principles of integrity for which the judiciary stands. In the case of K. P. Singh v High Court of H. P. and Ors., Justice Kurian Joseph remarked that “integrity depicts sterling character with firm adherence to a code of moral values. Judiciary is an integrity institution. Therefore, judicial officers should possess the sterling quality of integrity.” In the case of Tarak Singh v Jyoti Basu, the Supreme Court held that integrity is the hallmark of judicial discipline. Having regard to the plain truth that the judiciary is also manned by human beings and yet in view of their privileged position, it was cautioned as follows: “There is nothing wrong in a Judge having an ambition to achieve something, but if the ambition to achieve is likely to cause a compromise with his divine judicial duty, better not to pursue it. Because, if a Judge is too ambitious to achieve something materially, he becomes timid. When he becomes timid there will be a tendency to make a compromise between his divine duty and his personal interest. There will be a conflict between interest and duty.”
Justice Gogoi’s retirement from the Supreme Court does not impact him being a respected member of the judicial fraternity. Hence, one would expect him to act with the same dignity as is expected of a judicial officer. It is not unreasonable to think that he would continue respecting principles like separation of powers and independence of judiciary which, in the past, have been observed by judges even after retirement. In light of all this, the author opines that his acceptance of the nomination to become a member of the Rajya Sabha cannot be justified.
(Akshita Tiwary is a second year law student at Government Law College, Mumbai)
1. Law Commission, Reform of Judicial Administration (Law Com No 14, 1958). ↑
2. INDIAN CONST., Art. 80(1)(a) (1950) ↑
3. K. P. Singh v High Court of H. P. and Ors.,  3 KLJ 11. ↑
4. Tarak Singh v Jyoti Basu,  1 SCC 201. ↑
Cite as: Akshita Tiwary, ‘Decoding the Controversy Surrounding CJ Gogoi’s Nomination to Rajya Sabha [Part-II]’ (The Contemporary Law Forum, 01 May 2020) , <https://tclf.in/2020/05/01/decoding-the-controversy-surrounding-cj-gogois-nomination-to-rajya-sabha-part-ii/>, date of access.