The judiciary's annus extraordinarius (unusual year), which began with allegations of sexual harassment against a sitting Chief Justice of India, has ended with the same CJI being nominated to the Rajya Sabha four months after retirement. The event has, not unnaturally, elevated blood pressures in the judicial community.
More shocking (to his former colleagues) than the fact that he was offered the seat, is the fact that he accepted it. Retired justices Kurian Joseph, Madan Lokur and A P Shah have chided him for making the judiciary look bad. If there were an ex-lordships club, the former CJI might well have been black-balled.
The BJP, meanwhile, is having a 'Me Too' moment, ie, following in the Congress' footsteps. The ruling party with no difference finds it expedient to adopt the doubtful precedents set by the Congress in its heyday. Indeed, the party increasingly has the feel of a Congress redux. So, it finds ample justification for the ex-CJI's appointment in the annals of history.
The 'Caesar's wife' principle, as applied to the judiciary (that judges must be above suspicion), took a solid hit during Emergency. A decade later, it buckled under the flood of whitewash unleashed by the Rangannath Misra Commission of inquiry (into the 1984 riots). Misra went on to become CJI and then, after he had retired, the Congress then gave him a Rajya Sabha seat, in 1998.
Fast forward to two decades later, when a Justice Gogoi-led bench was discussing allegations of sexual harassment against Justice Gogoi. Public opinion found it hard to swallow the notion of a judge sitting as a “judge in his own cause”.
But Justice Arun Mishra, also present, was concerned with an entirely different question. He was quoted as saying: "People have faith in the system, in the judiciary. If such unscrupulous, scurrilous allegations are raised, how will courts function?"
His concern for the judiciary came back to haunt him when the Supreme Court Bar Association panned him for heaping public praise on the “versatile genius” of Prime Minister Narendra Modi. Such statements, said the SCBA, “reflect poorly on the independence of the judiciary”.
The Bar Association of India concurred, while the Bombay Bar Association expressed outrage: “Comments of this nature shake the confidence of the members of the legal profession and the public at large in the independence and integrity of the Higher Judiciary.” In effect, the question raised by Justice Mishra has been turned on its head: do people have faith in the judiciary?
The controversy had just died down when another one broke. Justice Mishra had been appointed (by CJI Dipak Misra) to head a bench on the Land Acquisition law, which was tasked with ruling on a ruling by Justice Mishra himself.
The ruling itself was curious as the three-judge bench had overruled another three-judge bench, which had led to yet another three-judge bench raising questions of judicial propriety and decorum! As anticipated (given that he had categorically refused to recuse himself), the Justice Mishra-led bench upheld the Justice Mishra-authored ruling.
The hundreds of lawyers who had won favourable orders in land acquisition cases in various High Court under the 2014 interpretation of the law, bit the bullet.
But for the thousands of petitioners who had spent a fortune in legal fees on the strength of the 2014 interpretation, it was harder to understand what had happened.
They had won their case, but now, the apex court had changed its mind and they were back where they had started several years ago, poorer by millions in legal fees. Congress spokesperson Randeep Singh Surjewala tweeted that farmers had suffered “all round disappointment” thanks to a “unique interpretation” of the law by the apex court!
Ten days later, he was to tweet again: “Justice Lokur rightly summarizes it: has the last bastion fallen?” He was referring to ex-CJI Ranjan Gogoi's nomination to the Rajya Sabha. He wasn't the first ex-CJI to be 'honoured' by the ruling dispensation: in September 2014, retired CJI P Sathasivam was appointed Governor of Kerala.
There was no controversy. Then why has the ex-CJI's appointment created such a furore? At least part of it lies in the timing. The unusual move comes in the wake of controversial events that have shaken the legal community.
To reiterate: do people have faith in the judiciary? Justice (retd) Madan Lokur answered that question in an article earlier this year, titled “India’s Judiciary Is Facing An Increasing Lack Of Trust By Public”. He quoted Spider Man: “With great power comes great responsibility”. Their lordships must live up to it.
The writer is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independent writer and author.