Judges in Legislature

In common parlance our Parliament is the “Temple of Democracy.” It represents the will of the
common people of our country. Former CJI Ranjan Gogoi once said, “independent journalists
and sometimes noisy judges” should be the first line of defense to our democracy. His
nomination to the Rajya Sabha indicates that he has got a chance to put forth his voice in the
“Temple” and strive to protect the Indian Democracy. This article tries to expound the
possibilities for judges to become a Member of Parliament. It will encompass the positive and
negative aspects of judges getting into the Parliament with a special reference to the recently
nominated member of the Rajya Sabha Former CJI Ranjan Gogoi. This article will try to infer
possible reasons for his nomination in the light of judgments given and the role played by him as
CJI.

It is not an unprecedented practice as various other judges of the SC and HC have been
appointed to the Parliament. The common link in appointment of such judges is that their
judgments favored the government in power. But even before all this started the 14 th Law
Commission in as early as 1958 emphatically stated in paragraph 29 of its report that, "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." 1 The report further gave reasons as to why
a SC judge should denounce such offers from the government at once. The report said, "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." 2 "We are clearly
of the view that the practice has a tendency to affect the independence of the judges and should
be discontinued,"3 the Law Commission concluded. The bitter reality is that the report was never
implemented as various other reports.

Another plausible argument that can be advanced is that such nominations are a violation of the
Doctrine of Separation of Power. The doctrine categorically emphasizes that there should be

1
. Prabhash K Dutta, Justice Ranjan Gogoi as Rajya Sabha MP: Law Commission Report explains what is wrong here,
India Today( April 14th, 2020, 10:30 A.M.) https://www.indiatoday.in/amp/news-analysis/story/justice-ranjan-
gogoi-as-rajya-sabha-mo-law-commission-report-explains-what-is-wrong-here-1656834-2020-03-18
2
. Ibid.
3
. Ibid.

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separation of functions between the legislative, the judiciary and the executive. There can be an
overlap of ancillary functions but their main functions should always remain aloof. This doctrine
is also a part of the Basic Structure doctrine. Nominating retired Supreme Court judges to the
Parliament clearly violates these cardinal principles of the legal jurisprudence. These favors may
act as post-retirement incentives for the present judges. “Separation of powers, foundational to
modern democratic institutions, is not as clear in practice as it is in theory. Our analysis suggests
that the prospect of being appointed to government positions after retirement could be a way in
which the executive exercises control over an otherwise independent judiciary, in countries with
judicial term limits.”4 This would make the judges act in a biased manner and would jeopardize
the honorary principles of the courts.

Why the nomination of Former CJI Ranjan Gogoi to the Rajya Sabha is a headline?

Justice Ranjan Gogoi retired from the post of CJI in November 2019. He served at one of the
highest and most reputed positions in the country. Retiring from such an esteemed position and
now becoming a nominated MP in just 4 months shows his dire need to remain in power post-
retirement. At least the cooling down period should have been kept into consideration. The haste
and hurry brings the whole nomination process under doubt. There could literally be no
comparison between the post of CJI and a Rajya Sabha MP. Under the Order of Precedence, the
position of CJI is much higher in the order when compared with an MP. But Gogoi has made
them EQUIVALENT.

This step of Gogoi has been criticized and condemned by various reputed judges of SC and HC
including Justices Madan B. Lokur, Kurian Joseph, Markandey Katju, A.K. Patnaik, A.P. Shah,
etc. Various advocates of SC and HC have also reprehended this act of Ranjan Gogoi. The list
also includes judges who shared the couch with Gogoi at the famous and unprecedented press
conference by the 4 SC judges. All these learned and scholarly people called this act of Gogoi as
‘shameless and disgraceful', blatant on the Indian Judiciary’, etc. Some even doubted this to be a
“quid pro quo”. The various judgements such as clean chit to the Modi government in the Rafale
deal, the Ramjanambhoomi judgment which supported the central government’s view, not
allowing petitions questioning the constitutional validity of scrapping of Article 370, dismissing
various Habeas Corpus petitions amidst the abrogation of Article 370 are a testimony to the fact
4
. Madhav S. Aney; Shubhankar Dam; Giovanni ko, Jobs for Justice(s): Corruption in the Supreme Court of India,
2019.

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that his judgments favored the government’s action. And as a REWARD the government
nominated him to the Rajya Sabha. If Gogoi would not have accepted this offer, the suspicion of
quid pro quo would have been buried. But his acceptance to the same clearly and unequivocally
gives weightage to the suspicions. A research very correctly opines that “judges who have
authored favorable judgements in important cases are more likely to receive prestigious
government jobs.”5

In his defense, Justice Gogoi said that Legislature and Judiciary should work hand in hand. His
presence in the Parliament will help in putting the view point of judiciary in front of the
legislature and vice-versa. Gogoi can cite precedents that even before him various CJI’s and SC
judges have accepted various constitutional positions. He is not the only one to do so and
therefore is just being targeted by his fellows whom he attributes as people with “failed
ambitions”. However, one cannot completely ignore the fact that it was Gogoi only with 3 other
judges who had held the historic press conference questioning the Master of the Roaster role of
the, then CJI Dipak Mishra. But the bitter truth is things remained unchanged even when Justice
Ranjan Gogoi held the CJI's office. The press conference seemed just a hoax and a fallacy.

In my opinion, there is no issue if a judge becomes a member of the Parliament. But he should
not become a member by nomination. He should contest elections and let the common people
decide whether they want him as their representative or not. After all, Parliament is the manifest
will of the people. If the people vote him in, there shall be no issues. No motives will be
attributed to any judge nor a compromise will be made with the prestige and image of the
judiciary. Moreover, if the judges really want to serve the common people, then they should
contest independent elections. They should not involve in party politics to the extent possible. If
they get involved in party politics then this may impute aspersions on them. Their aim of
people’s welfare will not be fulfilled and this would also raise questions on the legal system.

The major concern such appointments bring is that they execrate and lower down the image of
the esteemed Indian Judiciary in the eyes of the common people. It shatters and shakes the pillars
of faith and hope the common masses have on the legal system. When the ordinary people are
distressed and oppressed by the government and the executive, their only ray of hope is the
judicial system. But such acts are a huge blow to their ray of hope. Once the people have the

5
. Ibid.

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belief that the legal system is not dispensing justice, they would lose faith in the system. But I
have a strong belief that the judiciary will keep up to the spirits of the people. These events are a
test for these institutions and they would pass it with flying colors. I firmly believe that
institutions are strong powers and have proven their worth from time to time and will continue
doing so in the coming times.