Madhu Kishwar Files PIL Against Ex-CJI Gogoi’s Nomination to RS

Petition argues the appointment has given external & internal enemies of India an excuse to attack Supreme Court.

Madhu Kishwar (L) and Ranjan Gogoi (R).

(Photo: The Quint)

Arguing that it crosses a “Lakshman rekha with regard to independence and integrity of the judiciary”, academic and activist Madhu Purnima Kishwar filed a Public Interest Litigation (PIL) in the Supreme Court of India challenging the nomination of former CJI Ranjan Gogoi as a member of the Rajya Sabha, on Wednesday, 18 March.

In the petition, which she has prepared in person – without the help of a lawyer – Kishwar has asked the apex court to:

• Stay the appointment order dated 16 March by which Gogoi has been appointed as a member of the Rajya Sabha.
• Pass an order mandating a five-year cooling off period before a retired judge of the high courts or Supreme Court can be given an appointment by the government, including as President, Vice-President, MP or MLA.

Kishwar, despite being a known supporter of Prime Minister Narendra Modi government, had criticised the move when it became public, and termed it a “big blunder”. She also criticised the former CJI for accepting the nomination.

As grounds for her petition, she argues that the independence of the judiciary is an “essential part of the basic structure of the Constitution” and a “pillar of democracy.”

As the judiciary relies on the faith of citizens in it, any act which creates an adverse impression about the independence of the courts – like the appointment of Gogoi – “amounts to an assault on the independence of judiciary,” says Kishwar.

She also points out that previous appointments of this sort, such as those of Justice Baharul Islam to the Rajya Sabha after his retirement in 1983, as well as former CJI Ranganath Misra’s, had led to “serious misgivings about judicial integrity among general public.”

Such events, she argues, can give a handle to external enemies of India as well as “Break Up India Forces within the country” to badmouth the Supreme Court. She refers to the negative coverage of Gogoi’s appointment as an MP in the domestic and international media over the last couple of days to say this is already happening.

The petition also brings up the fact that Gogoi was one of the four judges who held that unprecedented press conference in January 2018, in which they spoke of ensuring the independence of the judiciary from the government.

It also points out that Gogoi had himself said that there is a valid “strong viewpoint” that “post retirement appointment is itself a scar on judicial independence of the judiciary”.

These comments were made by the former CJI in March 2019 while part of a bench hearing a case relating to constitutionality of changes to the way tribunals would function in India.

Kishwar’s petition concludes by acknowledging that unlike the offices of the CAG or members of the UPSC and State Public Service Commissions, the framers of the Constitution did not explicitly restrict judges of the Supreme Court or the high courts to take up any public offices post-retirement. However, she argues that this was because the judges

“were expected to conduct themselves in such a manner even after their retirement so as not to create an adverse impression about the independence of the judiciary.”

As a result, she has asked the Supreme Court to mandate the new rule on a cooling off period for high court and Supreme Court judges, on the lines of the restrictions on post-retirement appointments for Lokpals and Lokayuktas under Section 8 of the 2013 Act which governs them.