New Delhi: In a move that has sent shockwaves through legal and political circles, former Chief Justice of India Ranjan Gogoi has been nominated as a member of the Rajya Sabha by President Ram Nath Kovind. A notification to this effect was issued by the Union home ministry on Monday.

Gogoi retired from the Supreme Court barely four months ago. This is the first time a government has used its power to nominate individuals for the Rajya Sabha to offer a post-retirement sinecure to a former Chief Justice of India.

The official notification states: “In exercise of the powers conferred by sub-clause (a) of clause (1) article 80 of the Constitution of India, read with clause (3) of that article, the President is pleased to nominate Shri Ranjan Gogoi to the Council of States to fill the vacancy caused due to the retirement of one of the nominated member (sic).”

The fact that a government has nominated a former CJI to the upper house will raise questions about the constitutional separation of powers between the executive and the judiciary, especially since Gogoi headed benches in key cases that the same government which has nominated him had important political stakes in.

These included the Rafale matter, the dismissal of Central Bureau of Investigation director Alok Verma, the Ayodhya matter, and several other key cases.

Speaking to The Wire, Dushyant Dave, senior advocate and president of the Supreme Court Bar Association, said, “This is totally disgusting, a clear reward in quid pro quo. The semblance of independence of the judiciary is totally destroyed.”

“It’s just so sad,” lawyer Karuna Nundy tweeted. “The brazenness of it. Destroying constitutional propriety for a measly Rajya Sabha seat.”

Also read: From the Supreme Court, a Reminder that Justice Was Sacrificed to Save a Judge

Justice (retired) Madan B. Lokur too expressed dismay at the nomination. “There has been speculation for sometime now about what honorific would Justice Gogoi get. So, in that sense the nomination is not surprising, but what is surprising is that it came so soon. This redefines the independence, impartiality and integrity of the judiciary. Has the last bastion fallen?” he told the Indian Express.

““Noisy” judge indeed! (remember the Ramnath Goenka lecture?). “The boy who wrote the best essay got the first prize” said C.K. Daphtary in 1973, when A.N. Ray was made CJI over the heads of three senior judges,” senior advocate Raju Ramachandran wrote on his Facebook page about Gogoi’s nomination.

Coincidentally, the government in January also appointed the former CJI’s brother, Air Marshall (Retd) Anjan Kumar Gogoi, as a full-time non-official member of the North Eastern Council (NEC).

Mishra rewarded by Congress when in opposition

While this is not the first time a former CJI has become a member of the Rajya Sabha, a direct nomination by the government of a former chief justice is indeed unprecedented. Justice Ranaganath Mishra, who retired from the CJI’s position in 1992, became an MP in the upper house in 1998 on a Congress ticket but at a time when the Congress was not in power and the government was headed by Atal Bihari Vajpayee of the BJP. Thus, the question of the government misusing its powers to influence the judiciary did not arise.

Even so, Congress leader Sonia Gandhi’s decision to get Mishra elected to the upper house was controversial because it was seen as payback for his having covered up the political culpability of senior Congress leaders in the 1984 massacre of the Sikhs as head of the Justice Ranganath Mishra Commission. Earlier, he had been rewarded by the then Narasimha Rao government with chairmanship of the National Human Rights Commission upon his retirement from the apex court.

Sexual harassment charge

Justice Gogoi’s tenure as CJI, which ended on November 17, 2019, was marked by various controversies, including allegations of sexual harassment and the subsequent pursuit of a vendetta against the woman in question, her husband and her two brothers-in-law.

The sexual harassment allegations first came to light in April 2019, when three media houses including The Wire published detailed reports on the ordeal the woman and her family had to face. Gogoi, however, denied all the allegations and shocked observers by presiding over an “emergency hearing” on the matter himself.

In a reaction to Gogoi’s nomination to the Rajya Sabha, Vrinda Grover, the Delhi-based lawyer who was counsel for the woman who had levelled the harassment charge, said, “I’ve said this before, and I’m saying it again, because there is fresh evidence to substantiate it, credible sexual harassment accusations by a woman do not destroy, or damage, or tarnish the reputation or prospects of powerful men.”

Precedent set by Indira Gandhi, eclipsed by Modi

The first time a judge of the Supreme Court was nominated to the Rajya Sabha soon after retirement was Justice Baharul Islam, who retired from the apex court in January 1983 and was sent to the upper house by Indira Gandhi, who was prime minister at the time, in June 1983. He had earlier been a Rajya Sabha MP from 1962 to 1972, before he was made a judge.

Islam’s nomination was widely seen as a reward for the relief he gave the then Congress chief minister of Bihar, Jagannath Mishra, in the Patna Urban Cooperative Bank scam case.

Unlike Justice Islam, who was a puisne judge, Justice Gogoi as CJI not only presided over politically sensitive cases but played a key role in deciding which matters were sent to which bench as he was ‘master of the roster’.

Apart from Gogoi, Mishra and Islam, there are no other precedents of Supreme Court judges becoming members of the upper house.

There are of course plenty of cases of judges getting key posts.

Justice M. Hidayatullah retired as CJI in 1970 and was appointed – apparently on the basis of all-party consensus – vice president of India in 1979, in which capacity he served as chairman of the Rajya Sabha.

Justice K.S. Hegde, who resigned from the apex court in 1973 when Indira Gandhi superseded him and appointed A.N. Ray as CJI, joined the Janata Party subsequently and was elected to the Lok Sabha from Bangalore (South) on the party’s ticket. He served as speaker of the house from 1977 to 1980.

M.C. Chagla, who retired as chief justice of the Bombay high court in 1958 was appointed India’s ambassador to the United States and then high commissioner to the United Kingdom by Jawaharlal Nehru. He subsequently entered the government first as minister for education and then external affairs minister.

Chagla’s appointment, incidentally, was criticised at the time by the eminent lawyer and jurist, M.C. Setalvad.

The Modi government triggered a controversy in 2014 itself when it appointed another former CJI, Justice P. Sathasivam, as governor of Kerala. Sathasivam had retired from the Supreme Court in 2013 but had presided over a bench that gave significant relief to the then home minister of Gujarat, Amit Shah, in the custodial killing case of Tulsiram Prajapati. Shah is now Union home minister.

While Sathasivam was the first CJI to be appointed a governor, the first apex court judge to be sent to a Raj Bhavan was S. Fazl Ali, who retired in May 1952 and was made governor of Odisha the next month. Forty-five years later, Fathima Beevi, who retired from the Supreme Court in 1992, was made governor of Tamil Nadu in 1997, five years after her last order as a judge.

In 2017, there were reports that another former CJI, Justice T.S. Thakur, had been approached by the Aam Aadmi Party to contest for one of its Rajya Sabha seats but declined the offer.

Jaitley: ‘Judgments influenced by desire for post-retirement job’

Ironically, the idea of giving post retirement jobs to top judges was strongly opposed by the late BJP leader Arun Jaitley, who denounced such appointments at a meeting of the BJP’s legal cell in 2012.

“Pre-retirement judgements are influenced by a desire for a post-retirement job,” Jaitley had said. “This clamour for post retirement jobs is adversely affecting the impartiality of the judiciary of the country and time has come that it should come to an end…”

Apart from sending Justice Sathasivam to Kerala as governor, however, Jaitley was also party to the appointment of Justice Adarsh Goel, immediately after retirement from the Supreme Court, as head of the National Green Tribunal.

Note: In an earlier version of the story, it was incorrectly stated that Justice Fathima Beevi was the first Supreme Court judge to be appointed a governor. In fact, Justice S. Fazl Ali was the first, in 1952, and the story has been edited to make the correction.