Article 80 (1) (a) of the Constitution of India, 1950 (“the Constitution”) postulates the nomination of 12 members by the President of India to the Council of States (Rajya Sabha) and those persons under Article 80(3) of the Constitution are to be persons having special knowledge or practical experience in respect of such matters as the following, namely; literature, science, art and social service.

  • In the Constituent assembly debates and discussions Shri Gopalaswami Ayyangar observed:
    “…we also give an opportunity, perhaps to seasoned people who may not be in the thickest of political fray, but who might be willing to participate in the debate with an amount of learning and importance which we do not ordinarily associate with a House of the People…”

    According to a home ministry notification, the President, under “sub-clause (a) of clause (1) of Article 80 of the Constitution of India, read with clause (3) of that article”, nominated former chief justice of India, Ranjan Gogoi for the Upper House on March 16.

    To oppose Gogoi’s nomination, the members of opposition parties walked out from the House.
    Justice Gogoi’s nomination to the Rajya Sabha has not found favour with retired Supreme Court judges like justices Madan Lokur, AK Patnaik and Kurian Joseph who have spoken out against it.

    However, before taking oath as Rajya Sabha Member of Parliament, in an interview with an Assamese news channel, Justice Gogoi said, “my presence in Parliament will be an opportunity to project the views of the judiciary before the legislature and vice versa, I had given the nomination a considerable thought before agreeing to take accept it.”
    “Let God give me the strength to have an independent voice in Parliament. I have much to say, but let me take oath in Parliament and after that, I will speak,” Gogoi said.

    Justice Gogoi served as the 46th Chief Justice of India from 3 October, 2018, to 17 November 2019.
    Ranjan Gogoi, took oath as Rajya Sabha Member of Parliament on March 19, three days after he was nominated for the post by President Ram Nath Kovind. He has been allotted seat number 131 in the House. He’ll fill the vacancy created after jurist KTS Tulsi retired from the Rajya Sabha.

    Ranjan Gogoi is the first former CJI to become a nominated member of the Rajya Sabha. His nomination is in keeping with Rajya Sabha’s highest standards. He has not been made a Rajya Sabha member on a party ticket, but has been nominated by the President.

    It cannot be disputed that a former Chief Justice of India who has been a judge for about 15 years fits the description eminently.

    Members of Congress and the Bahujan Samaj Party (BSP) opposed Gogoi’s appointment and walked out of the Rajya Sabha at the time of the oath taking. The Communist Party of India, DMK and MDMK also joined the protest.

    The quality of opposition party’s discourse, particularly of congress has plummeted to rock bottom. It is a harangue of incredible ignorance exacerbated by malicious disinformation and a Goebbelsian lie about all the administrative decisions taken by Modi government, whether it is CAA, NPR or nomination of Justice Ranjan Gogoi to Rajya Sabha.

    Especially disconcerting is the role of supposed intellectuals, who are still romancing by certain ideologies which are but dust on the bookshelves of political history in the countries of their origin. Some of them are enlightened members of civil society protesting on the streets, and seldom miss a chance to fish in troubled waters. Their recent canard illustrates their high-decibel brouhaha over the nomination of Ranjan Gogoi, by President of India, in Rajya Sabha.

    BJP spokesperson Sanjay Mayukh brushed aside the criticism saying Gogoi is a competent person, who should be in the upper House. “The Opposition is politicising his appointment, even though there is a precedent of judges being elected to Rajya Sabha. The opposition has made it a habit to create fuss over nothing.”

    Nomination of Ranjan Gogoi is not a unique case, there are several instances in the past where former Chief Justices have accepted a government post immediately after their retirement from the Supreme Court. The details given below are self-explanatory.
  • Justice K.S. Rao, the 9th Chief Justice of India, just after retirement on 11 April 1967 from the post of the Chief Justice of India on 11 April 1967’ contested for the post of the President of India in 1967 as a candidate of the united opposition parties. Nevertheless, he lost the elections to Zakir Hussain.
  • Supreme Court Judge, Justice K.S. Hegde resigned from the post on 30th April 1973. In 1977, he contested Lok Sabha election from the Bangalore South constituency on a Janata Party ticket and was elected. Later on, he became the Speaker of the Lok Sabha.
  • Baharul Islam, an active member of the Congress party, was elected to the Rajya Sabha in 1962 and for a second term in 1968 as a member of the Indian National Congress
    He resigned from the Rajya Sabha in 1972 and was appointed Judge of the then Assam and Nagaland High Court (Now Gauhati High Court) on 20 January 1972.He was appointed acting chief Justice of the Gauhati High Court on 11.3.1979 and became the Chief Justice of the Gauhati High Court on 7 July 1979, he retired on 1 March 1980.

He was appointed to the Supreme Court of India on 4 December 1980 which was unprecedented as a retired Judge is normally not appointed to the Supreme Court and further he could retire after only fifteen months.

He resigned from the Supreme Court on 12 January 1983 to contest from Barpeta, Assam to the Lok Sabha as a Congress party candidate [7][9] however, as elections in Assam were postponed in 1984 Indian general election.

However, Baharul Islam was elected as a Rajya Sabha 15 June 1983 and continued till 14 June 1989 on Congress ticket.

  • Justice Ranganath Misra was as the 21st Chief Justice of India, serving from 25 September 1990 to 24 November 1991. In 1998, he was elected as Member of Parliament in Rajya Sabha from the Congress Party.
  • Justice Dalveer Bhandari, Judge Supreme Court of India, was nominated by the Government of India as its official candidate for the post of member at International Court of Justice in January 2012 (even before his retirement on 27 April 2012). He won the elections and was sworn in as a member of the International Court of Justice on 19 June 2012. He was re-elected for a second term on 20 November 2017 after UK’s nominee Christopher Greenwood withdrew his nomination.
  • Justice S. Rajendra Babu, the 34th Chief Justice of India, retired on 1 June 2004 and was appointed as the chairman of the National Human Rights Commission on 2 April 2007.
  • Justice K.G. Balakrishnan, the 37th Chief Justice of India, retired on 12 May 2010 and was appointed as the chairman of the National Human Rights Commission, on 7 June 2010.

Justice HL Dattu, the 42nd Chief Justice of India, retired on 2 December 2015, and was appointed as the Chairman of the National Human Rights Commission in February 2016. He is serving as the Chairman of the Commission as on date.

Too much to claim with too little in substance. All of them were no doubt, men of merit and brought credit to the Supreme Court and the Indian Judiciary.

In fact, several laws of the Country (India) provide for appointment to several positions, being a judge or a chief justice of a Higher Court as one of qualifications. Therefore, to say that a mere acceptance of a post retirement position by a former judge of a Superior Court is denigration of independent judiciary, is against the mandate of the law and the Constitution.

Solely looking at the prior practice of former judges, and the Government in this respect in the past, there is absolutely nothing wrong, in the present nomination of Justice Gogoi as the member of the Rajya Sabha. There is no bar under the law for such a nomination. There appears to be no basis for the criticism against Justice Gogoi’s appointment.

Gogoi’s tenure as CJI was controversial, with a sexual harassment allegation raised against him by a Supreme Court staffer, who also claimed she had been terminated from service after she spoke up. The allegations were dismissed by an internal committee constituted by the Supreme Court. The complainant was later reinstated.

During Gogoi’s term, several key cases came up for the hearing — including the allegations against the government about procedural flaws in the procurement of Rafale jets, and the controversy over the government’s decision to transfer Central Bureau of Investigation director Alok Verma before the end of his term.

Gogoi’s most significant judgment was in the Ram Janmabhoomi case, where he led a bench which granted the disputed land in Ayodhya to the Hindu parties, paving the way for the construction of the Ram Temple, a key political agenda of the ruling Bharatiya Janata Party.

Was independence of judiciary compromised in all these judgments?