Justice Gogoi’s Rajya Sabha appointment fails the key Constitutional ideal of an independent judiciary

Justice Gogoi’s appointment to the Rajya Sabha will remain a sad reminder of the time when the government and other important functionaries failed to deliver on a modest hope of the drafters of our Constitution

The Presidential nomination of Justice Ranjan Gogoi as a member of the Rajya Sabha, and his acceptance of the position have provoked many to raise questions about the principles, or the lack of them, which have guided the actions of those involved. For it is certain that the appointment itself will be remembered as an important instance of the executive, the legislature and a member of the judiciary collectively failing the ideal of an independent judiciary favoured in the Constitution Assembly debates and the Constitution.

In fact, the independence of the judiciary was one of the most frequently debated themes in the Indian Constituent Assembly. Following Montesquieu’s doctrine of separation of powers, there was a broad consensus in the Assembly that the judiciary should be independent and separate from the legislature and the executive. But, the members of the Assembly were often at odds about granular aspects of this principle and how to codify it in the Constitution.

One of the most profound debates in this regard arose when Professor K.T. Shah, a member of the constituent assembly elected from Bihar, moved an amendment to fortify the above principle as Article 102-A in the draft Constitution of India.

The amendment sought to add a provision that provided for complete independence and separation of judiciary from the legislature and the executive. One of the primary characteristics of judicial systems under British rule was that, up to a considerable stage in the scale of judicial organisation, the powers of the judiciary and the executive were combined in one office. Moreover, high judicial officers were often appointed to higher executive offices in the government. Such a system was deemed inefficient in the protection of civil liberties in a democratic nation. It was significantly problematic for a federal setup too, where the judiciary is supposed to be an independent arbiter between the Union and its states.

Therefore, Shah argued that this provision be included despite the directive principle, contained today in Article 50 of the Constitution, that requires the state to separate the judiciary from the executive. The proposed amendment resonated with a number of members in the House.

However, the resolution to adopt this amendment was finally rejected by the Assembly. It was largely K M Munshi, member of the Drafting Committee, who assuaged the concerns of Shah and moved for rejecting the amendment. He explained that ample care had been taken in the Constitution to ensure that the judicial system in India should be independent. He went on to highlight these protections in the Assembly ranging from non-interference by the government in payment of a judge’s salary to protection of his tenure as a judge, save for impeachment. He also specifically highlighted how a judge is precluded from practicing after his retirement.

As a result, he reasoned that since the spirit of Shah's proposed amendment was already contained in the safeguards enshrined for our Constitutional institutions, there was no need to enshrine it in a separate provision. He went on and explained that the principle of the independence of the judiciary, with or without Shah’s amendment, largely depended on the spirit in which those in the legislature, the executive and those occupying positions in the judiciary approached this principle. For instance, in his speech on May 23, 1949, in the Constituent Assembly where he opposed the amendment moved by Professor Shah, he hoped that no member of the judiciary would look to the government for any future appointments after their term was over. Independence of the judiciary, he noted, was a matter that principally lay with those occupying constitutional posts – no amount of Constitutional protections could ensure its sanctity otherwise.

Seen from the perspective of future generations, Justice Gogoi’s appointment to the Rajya Sabha will be a sad reminder of the time when the government failed to deliver on a modest hope of the drafters of our Constitution – the hope that the government will preserve the cherished ideal of an independent Judiciary that was denied to the Indian people under British rule.

(Kashish Makkar is a student of National Law School of India University, Bengaluru)

The views expressed above are the author’s own. They do not necessarily reflect the views of DH.