Ret’d CJI Gogoi nominated to Rajya Sabha

What is Article 80 of the Constitution?

Article 80 specifies the composition of the Rajya Sabha (Council of States). Sub-clause (1)(a) read with clause (3) dictates that the President of India will nominate twelve members, who have “special knowledge or practical experience in” the following: “Literature, science, art and social service”. Historically, these qualifications have been interpreted expansively. For example, in 2012, President Pratibha Patil nominated cricketer Sachin Tendulkar to the Rajya Sabha.

The recent notification, nominating ret’d CJI Ranjan Gogoi, does not specify for which contributions he was nominated.

Which notable Benches did CJI Ranjan Gogoi preside over?

Famously, Chief Justice Ranjan Gogoi led the Bench that delivered the per curiam Ayodhya title dispute judgment. After hearing final arguments for forty days, the five-judge Bench awarded the title to the deity, Shri Ram Virajman. Further, it directed the Union to form a trust to manage the construction of a new temple at the site, under the Acquisition of Certain Area at Ayodhya Act, 1993. Exercising its powers under Article 142, it awarded the Uttar Pradesh Sunni Waqf Board an alternate site at Ayodhya for the construction of a mosque.

Chief Justice Ranjan Gogoi led the Bench that closely monitored the implementation of Assam’s National Register of Citizens (NRC). Under his watch, the NRC State Coordinator published the final list on 31 August 2019, which excluded roughly 19 out of the 330 lakh applicants. CJI Gogoi hails from Assam.

Notably, as Chief Justice, he authored judgments in two cases which were very sensitive to the Union – the Rafale Fighter Jet Deal and CBI Dispute cases. In the former, he declined to order a CBI investigation of the Rafale deal. The deal entailed the Union’s purchase of 36 fighter jets from French manufacturer, Dassault. In the latter, he re-instated Director Alok Verma as the head of the CBI, after he had been removed by the Union Government through a midnight order. CJI Gogoi held that the order was illegitimate as it lacked the approval of the High Power Committee. He directed the Committee – comprising Prime Minister Narendra Modi, Leader of the Opposition Mallikarjun Kharge and Justice A.K. Sikri – to make the final decision. Ultimately, the Committee divested Director Verma within 48 hours of the judgment.

Unofficially, the former Chief Justice briefly sat on the Bench comprised to determine whether the sexual harassment allegations against him were part of a conspiracy to harm the independence of the judiciary. A day after a former junior Court Officer accused CJI Gogoi of sexual harassment on 19 April 2019, he formed a Bench to look into the alleged conspiracy. In the special hearing on April 20th, he defended himself, but never signed the order that followed – thereby never officially recording his presence. Ultimately, an in-house Supreme Court panel found no substance in the allegations, while the Bench looking into whether there was a conspiracy has yet to offer a ruling.

Other notable cases he presided over:

• Sabarimala Temple Entry / Sabarimala Review Petitions
• Electoral Bonds
• VVPAT
• Elevation of Justice Kureshi
• RTI & Judicial Independence

Not the first time

As The Print has reported, this is not the first time a former Supreme Court judge has become a Member of the Upper House. In 1998, former Chief Justice Ranganath Mishra became an MP. However, unlike CJI Gogoi, he was not nominated by the President under Article 80. Chief Justice R. Mishra was a Congress MP. Famously, Chief Justice R. Mishra presided over the Commission that headed an investigation of the 1984 anti-Sikh riots. While he indicted certain workers of the Congress Party, he gave the party itself a clean chit.

Earlier, in 1983, Justice Baharul Islam was nominated in exercise of Article 80 to the Rajya Sabha, during Prime Minister Indira Gandhi’s tenure. Many saw this as a reward for his role in absolving Chief Minister of Bihar, Jagannath Mishra, in the Patna Urban Cooperative Bank scandal.

It remains to be seen how the larger public will view Chief Justice Ranjan Gogoi’s nomination. Many in the legal community, including former Supreme Court judges like Madan Lokur, have criticized the nomination for the Supreme Court’s image as an independent institution.