Humanity is enduring tough times. The pandemic has warranted unprecedented actions appositely diverting the global discourse away from politics and other mundane things, for what is of more paramountcy than the very existence of the human species itself.

When the global community works for a common objective with sincerity outstanding results can be achieved and hopefully we’ll tide over these tough times soon.

As an aspiring member of the legal fraternity in quarantine having plenty of time on my hands it is nearly impossible to not think about the legal happenings in the country.

One such happening of notable importance has been the swearing in of ex Chief Justice of India as a member of the Rajya Sabha. This unsurprisingly drew flak from various niches of the society-

Firstly the opposition in the parliament who consider this a quid pro quo(something in exchange of another) for the string of favourable decisions for the Modi government by the ex CJI. They made their thoughts known by jeering and creating a ruckus in the house while Mr. Gogoi was taking oath, this is a sad commentary on the parliament of the largest democracy in the world.

Second category of those not very amused by this decision were the members of the legal fraternity itself who believe this to be a dent on the strong independent image of the judiciary

Thirdly, the average Indian citizen who is forced to reconsider her views on the institution she has long regarded as pristine perhaps even pious.

Justice Gogoi, or Mr. Gogoi as he prefers to be called now having taken the oath as a Rajya Sabha member, now has the luxury of appearing in interviews which is usually frowned upon when done by an acting judge and the interviewers have addressed the elephant in the room with commendable alacrity. Mr. Gogoi has been gracious enough to answer these questions with commendable veracity although I disagree with his line of arguments and wish to put forth my views as to why his actions are in stark contravention to the ethics that a custodian of the apex law chamber of any country which believes in rule of law is expected to follow, especially of Mr. Gogoi’s stature and intellect who held a press confrence with his brother judges casting aspersions over independence of the Indian judiciary and hence is aware of the sensitivity of the matter.

The fundamental line of reasoning of Justice Gogoi has been the fact that his nomination is not unconstitutional, while this is completely true and no one can be a better judge of this than the ex chief justice of the country, one must bear in mind that there are some unsaid traditions and customs that need to be followed.
Perhaps no better example can be put forth than the nomination for the post of chief justice itself, which is bestowed upon the senior most judge, one must bear in mind that this is no where mentioned in the Indian constitution or any other procedural law and is a mere tradition that has been followed in the Indian supreme court and is now an intrinsic part of it.

The Bangalore Principles of Judicial Conduct lay down the ethics by which judicial officers should comply to uphold the judicial integrity. Although it is not binding on any state, it has been a beacon of ethics especially for countries that have common law, like ours.

The preamble of the Bengaluru convention realises the importance of a competent, independent, impartial judiciary in carrying out administration of justice and safeguarding democracy.

Public confidence in moral authority and integrity of democratic institutions is of utmost importance in a democratic society, the judiciary does not have the luxury of having armed forces under it’s command to make the public comply with their order and largely depends upon the adulation and respect of the populace.

Hence it is the responsibility of judges individually and collectively honour judicial office as a public trust and strive to enhance and maintain public confidence in the judicial system.

The Bangalore code lays down in article 2.2 “A judge shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence which is fundamental to the maintenance of judicial independence”

Further in article 4.2 it states “A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary”

These principles are in consonance with the principle of natural justice, “Just must not only be done, but must be seen to be done”

Further, the Supreme Court in 1997 adopted a charter called “Restatement of Values of Judicial Life” which was one of the documents referred while drafting of the the Bengalore convention, this was a 16 point code of judicial ethics for an independent and fair judiciary.

The very first and the last point explicitly reinforce the arguents put forth earlier,

Point one states-
“Justice must not merely be done but it must also be seen to be done .The behavior and conduct of the members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme court or High Court,whether in official personal capacity ,which erodes the credibility of this perception has to be avoided”

The last point, states
“Every judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held”

Hence, contrary to what Mr. Gogoi has said, I believe it is reasonable to expect a former chief justice to eschew a Rajya Sabha nomination by the president. The Indian Constitution does not expect the president to be infallaible and perhaps that’s why lays down in article 143 the power to take advise from the supreme court!

On a more positive note, directing his remuneration to libraries in law schools of small towns is extremely laudable and there’s not a scintilla of doubt in my mind that the vast expertise and tenure of Mr. Gogoi will be an asset to the parliament if utilized appropriately.