The entire structure of Indian democracy stands on separation of powers, and integrity of judiciary.
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Post retirement appointments for Indian Judiciary
- Indian democracy: The structure of constitutional governance in India rests on the separation of powers. The legislature is popularly elected where the sovereignty of the people resides; the executive is accountable to the legislature; and the judiciary is the upholder of the Constitution and, along with its other duties, provides a check against executive excesses, arbitrariness, and unlawful steps.
- Sentinel: Being the Guardian of Constitution, the judiciary has to be independent — insulated from pressures and inducements. This independence is ensured by many constitutional provisions.
- Judges do not hold their offices at the “pleasure” of the President. In other words, they cannot be arbitrarily removed by the government once they are appointed, and can only be impeached by a special majority of both houses (Article 124(4)) of Parliament only “on the ground of proved misbehaviour or incapacity”.
- This impeachment process is a very difficult one and never in the history of independent India has a judge been impeached, though attempts have sometimes been made to do so. Judges, therefore, enjoy security of tenure while holding office, which is essential for maintaining judicial independence.
- Appointment of judges in higher judiciary is via a process of Collegium, which is independent of the government.
- Post-retirement appointments: A grave concern over the years has been the speed with which some judges, upon retirement from the Supreme Court, have taken up assignments with the govenrment of India. That puts a question mark on their verdicts while serving as judges.
- In the Constituent Assembly, K T Shah had suggested that High Court and Supreme Court judges should not take up an executive office with the government, “so that no temptation should be available to a judge for greater emoluments, or greater prestige which would in any way affect his independence as a judge”. But this was rejected by Dr B R Ambedkar. According to him “judiciary decides cases in which the government has, if at all, the remotest interest, in fact no interest at all”.
- Immediately after independence, the judiciary was engaged in deciding private disputes and rarely did cases arise between citizens and the government. Later Dr B R Ambedkar held that, “the chances of influencing the conduct of a member of the judiciary by the government are very remote”.
- This reasoning no longer holds today because the government is one of the largest litigants in the courts of India!
- Many examples: Retired judges have been appointed to political office since independence. In 1952, Justice Fazl Ali was appointed the Governor of Orissa, shortly after retiring from the Supreme Court. In 1958, Chief Justice M C Chagla resigned from the Bombay High Court in order to become India’s Ambassador to the US at Prime Minister Nehru’s invitation. In April 1967, Chief Justice Subba Rao resigned from the Supreme Court to contest elections for President. In more recent times, Chief Justice P Sathasivam was appointed the Governor of Kerala.
- What happens: This undermines the independence of judiciary.
- Article 124(7) of the Indian Constitution provides that a retired Supreme Court judge cannot “plead or act in any court or before any authority within the territory of India”. However, this provision only restricts post-retirement appointments in Judiciary itself, but not in posts of president, governor, member of parliament, etc.
- So the post-retirement appointment of judges may threaten or undermine judicial independence. This is because some judges — not all — are offered post-retirement employment by the government.
- It is thought that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position.
- Constitutional propriety: If a judge decides highly controversial and contested cases in favour of the government and then accepts a post-retirement job, even if there is no actual quid pro quo, it leads to the public perception that the independence of the judiciary is compromised. That happened with ex CJI Ranjan Gogoi, who gave some major verdicts, and then joined Rajya Sabha immediately upon retirement! He was also implicated in a sexual harassment case where he was the judge himself!
- Law Commission Recommendation: In its 14th report in 1958, the Law Commission noted that retired Supreme Court judges used to engage in two kinds of work after retirement. One was “chamber practice” (a term which would, today, mean giving opinions to clients and serving as arbitrators in private disputes) and second was “employment in important positions under the government”. The Law Commission frowned upon chamber practice, but did not recommend its abolition. It strongly recommended banning post-retirement government employment for Supreme Court judges because the government was a large litigant in the courts. The recommendations were never implemented.
- Former Chief Justices: In the 1980s, Chief Justice Y V Chandrachud felt that some judges were looking for post-retirement positions and writing judgments with that in mind. Later, Chief Justice R S Pathak believed that judges with short tenures at the Supreme Court tended to be more pro-government in their approach since they were looking for a suitable position after retirement.
- Cooling off: Many appointments to administrative bodies require a cooling-off period for individuals so as to eliminate the possibility or suspicion of a conflict of interest or quid pro quo. This cooling-off period must be extended to Indian Judiciary. Former CJI R M Lodha recommended a cooling-off period of at least 2 years. Officials who retire from sensitive positions are barred from accepting any other appointment for a period of time, normally two years. These cooling-off periods in posts are premised on the snapping off of the nexus between previous incumbency and new appointment by the interposition of a sufficient time gap.
- Justice Mohammad Hidayatullah: In 1970, Mohammad Hidayatullah was hearing the highly political privy purses case, in which he would deliver his last judgment as CJI. In that case, the Supreme Court held that the Indira Gandhi government’s decision to abolish the “privy purses” paid to former Indian princes (who had agreed to join the Indian Union after the British left India) was illegal. While the hearings were on, it was reported that Hidayatullah was being considered by the government for the World Court or for the position of Lokpal after he retired. But he made it very clear that even if he were offered any of these positions, he would not accept them. He was appointed vice-president nine years after his tenure as CJI ended.
- EXAM QUESTIONS: (1) Explain the need for separation of powers, in a constitutional democracy. (2) What are the precautions that a judge with character and integrity ought to take, to maintain his independence from pressures of executive?
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