India is a ‘Constitutionalism’ country with its own ‘Constitution’. Constitutionalism is the antithesis of power. It acknowledges the need for governmental power but simultaneously puts limitations on it. It carries with it the spirit of distribution of power rather than concentrating it at one point. Indian democracy has three pillars, namely, Legislature, Executive and Judiciary which follow the Doctrine of Separation of Power. This doctrine is a part of the basic structure of the Constitution. The Legislature makes the law, the Executive implements it and the Judicial branch adjudicates the disputes of law. The Judiciary keeps an eye over legislature and executive action. Each pillar respects the domain of other.
This article focuses on the Judiciary and Legislature. The difference in opinion between the legislature and judiciary is, to some extent, desirable and has been observed in many cases. The two consecutive articles of Constitution elucidate the supremacy of both. Art. 121 restricts the Parliament from discussing conduct of any Judge of the Supreme Court or of a High Court in discharge of his duties while Art.122 restricts the courts from calling into question the validity of any proceedings in Parliament.
The equation of Indian parliament and judiciary for the first time changed in 1985 with the Anti Defection Act. The Speakers of State Assemblies were given the power to decide the issue of defection of political parties. The equation has then been changing till today. The present conflict between the Judiciary and Legislature is not tenable. The situation demands the creation of a bridge between these two pillars.
The Indian Legislature is bicameral. The Lower House is deputed as ‘Lok Sabha’ or ‘House of People’ and the Upper House as ‘Rajya Sabha’ or ‘Council of States’. Lok Sabha represents the will of the people as its members are directly elected by the citizens on the basis of adult suffrage. Rajya Sabha is composed of members who are indirectly elected. The value of Upper House lies in the talent, experience and knowledge which it can harness to the service of the country which might be lost otherwise. Art.80(1)(a) states that the Council of States shall consist of twelve members to be nominated by the President in accordance with provision of clause (3), which states that the members to be nominated by the President shall consist of persons having special knowledge or practical experience in respect of literature, science, art and social service. Rajya Sabha serves number of purposes as following: –
- It is a forum where experienced men get ingress without indulging into tussle of general elections.
- It acts as debating forum to conduct dignified debates and is a correcting chamber for the bills passed by Lok Sabha.
- As States of the Union are represented in the forum it remarks functioning of federal principle
Nomination to Rajya Sabha
Justice Gogoi, ex-CJI who had a tenure of little more than 13 months at the Apex Court, was nominated by the President as member of Rajya Sabha on March 20, 2020 to fill the vacancy created by the retirement of Shri K.T.S Tulsi.
Of the 12 nominated MPs, eight are members of the BJP (Sambaji Chhatrapati, Roopa Ganguly, Suresh Gopi, Subramanian Swamy, Rakesh Sinha, Raghunath Mohapatra, Ram Shakaland and Sonal Mansingh), while three are unattached – Mary Kom, Narendra Jadhav, and Swapan Dasgupta, though Dasgupta is well known as a pro-BJP ideologue. The 12th is Gogoi, who will probably remain unattached but used as a legal voice to counter the strong Congress lawyer MPs in the Rajya Sabha, like P. Chidambaram, Kapil Sibal, A.M. Singhvi, Vivek Tankha, Ashwini Kumar and others.
Justice Gogoi retired in the month of November last year, during his tenure of CJI he delivered historic judgements in the Ayodhya Case, the Rafale deal case, Sabrimala Review Petition Case, Assam’s NRC Case, etc. His nomination was followed with protest from opposition in Parliament saying it is “one of the most serious, unprecedented and unpardonable assaults on the basic structure of the Constitution” The member has received opposition form some judges too. Justice Gogoi justified it saying, “it will be an opportunity to project the views of the judiciary before the legislative and vice versa.”
Not the first chief justice
Justice Gogoi is not the first CJI to be appointed as a member of the Upper House. Justice Raghunath Mishra served as a member of Rajya Sabha from 1998-2004. However, the point of difference here is that he was not nominated by the President but was a member of political party. Justice Gogoi was appointed as an MP after only the first few months of his retirement becoming the first early retired judge in the country to get membership of Parliament. Justice Mishra joined the political party almost after 7 years of his retirement and was then nominated.
In 1970, retired CJI Hidayatullah was a candidate for the office of vice-president (ex-officio Chairman of Rajya Sabha) by the ruling party. He was elected and held that office for a full term.
Criticism of his Nomination
Appointment of Justice Gogoi has from the beginning been accompanied by criticism. Some major criticisms are:
1. Quid pro quo
Membership of Rajya Sabha is granted to those who imminently work in a prescribed field under Art. 80(3) and contribute to society. The criteria today has shifted and nomination is granted to those who follow the book. As CJI, Justice Gogoi often attracted, not always baseless, the charge that he was currying favor with the Modi government, using his power as master of the roster to ensure that the government’s arguments always managed to prevail in politically-sensitive cases. He was also a part of the press conference held in 2018 against the then CJI Dipak Mishra. This is one of the reasons critics believe to be behind his nomination.
The experts critiquing Justice Gogoi’s nomination must not fail to remember the appointment of other Hon’ble Judges to the Upper House. Justice Baharul Islam, who was a member of Rajya Sabha resigned just to become the judge of High Court. He, later, was appointed as the Judge of Supreme Court who during his tenure gave judgements in favor of Congress CM. Thereafter, to become MP, Justice Islam resigned. Also, Justice Raghunath Mishra gave a clean chit to Congress for the Anti-Sikh Riots who then became member of Upper House as mentioned above. Henceforth, opposition before criticizing the present government must look back and see what actually happened during their governance.
2. Independence of Judiciary
Independence of Judiciary is a sine qua non for every democratic form of government. The term independence is neither defined in Constitution nor in General Clauses Act, 1897. The word, in its literal sense means state of being not dependent on or controlled by other. Hence. independence of Judiciary means that it should not be controlled by any authority or organ. The term was given elaborated meaning in – S.P. Gupta v. Union of India.
The SC, in this case, held that “Judges should be of stern stuff and tough fiber, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says Be you ever so high, the law is above you. This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community.”
The appointment of a Retired Judge to Parliament has nothing to do with Independence of Judiciary. The Constitution of India restricts many public servants from accepting any post-retirement jobs. Art. 148 prohibits the Comptroller and Auditor General from taking up any job. So does art.319, under which the chairman of the Union Public Service Commission is restricted. All of them retire at the same age as the judge of the Supreme Court. The only restriction on retired judges is for legal practice. Hence, where the law of land does not restrict it. why is his nomination being questioned so much? Where the Apex Court believes in precedents, there have been several as cited above. If it is so against Constitution then the Parliament must bring Constitutional amendment barring Retired Judges to become MP.
As far as the author believes, no dignity of Judiciary is being harmed by his appointment. If it is, it is due to the political crossfire.
The Indian Constitution is combination of several constitutions. The feature of Parliamentary form of government was adopted from the British Constitution, wherefore, it becomes important here to take it into consideration. Until 2005 the highest court was Committee of the House of Lords. All the judges were legislators who took part in formulating judgement on laws enacted by them. It all changed when the British Parliament realized that is was violative of ‘Doctrine of Separation of Power’.
Why not accept this system? A system where retired judges are appointed as Members of Upper House. We need to come by the principle that ‘Doctrine of Separation of Power’ is majorly a separation of functions performed rather than the sole power. The sole power of administering the country rests in all the three organs, making them inter-related, and dependent, to each other.
As the times change, so do the systems of the country. It is for this reason that makers of world’s longest written constitution provided it with the feature of flexibility. The time demands where the makers and adjudicators of law (Legislation and Judiciary) create a viaduct between them, speaking in one voice and make a better India.
 Charles H. Mcilwain, Constitutionalism: Ancient and Modern, 21.
 Keshvananda Bharti v. State of Kerala, A.I.R. 1973 S.C. 1461.
 MP Jain, India Constitutional Law, 26.
 Rajeev Dhavan, The Revolving Door for Ranjan Gogoi Does the Supreme Court and Parliament No Credit, The Wire (May 24, 2020, 6:10 PM), https://thewire.in/law/the-revolving-door-for-ranjan-gogoi-does-the-supreme-court-and-parliament-no-credit.
 Manohar Lal Sharma v. Narendra Damodardas Modi and others, 2019 (3) S.C.C. 25.
 Kantaru Rajeevaru v. Indian Young Lawyers Association Thr. Its General Secretary and Ors Review Petition, (Civil) NO.3358/2018.
 Assam Public Works vs Union of India, WRIT PETITION (CIVIL) NO.274 OF 2009.
 Dr. Abhishek Manu Singhvi, Indian National Congress, (May 23, 2020, 5:45 PM) https://www.inc.in/en/media/press-releases/rs-nomination-of-a-retd-cji-is-one-of-the-most-serious-unprecedented-and-unpardonable-assaults-on-the-basic-structure-of-the-constitution-dr-abhishek-manu-singhvi.
 Maneesh Chhibber, The reasons former CJI Ranjan Gogoi will give for accepting Rajya Sabha nomination, The Print (May 23, 2020, 6:30 PM), https://theprint.in/opinion/reasons-ranjan-gogoi-accepting-rajya-sabha-seat/382590/.
 Sheonandan Paswan v. State of Bihar & Others, 1983 AIR S.C. 194.
 S.P. Gupta Vs Union of India, 1982 (2) SCC 831.