POST-RETIREMENT APPOINTMENT OF JUDGES- A SERIOUS ISSUE UNDERMINING JUDICIARY’s INDEPENDENCE
In this post, the author has discussed the plight of the Judiciary's independence. The author has discussed in detail the repercussions of the post-retirement appointment of judges on the independence of the judiciary.
Judicial afternoons and evenings are sensitive phases, the incumbent being bothered about post-retiral prospects. The Executive plays upon this weakness to bend the integrity or buy the partiality of the elderly brethren.
-Justice V.R. Krishna Iyer
The Constitution of India is supreme and provides for an independent judiciary that works to establish constitutional democracy. It serves as a touchstone to determine the truthfulness of the actions of other organs. This faith is entrusted in the hands of Judiciary by the people who have imposed their trust in this institution to protect their constitutional rights and to save them from the abuse of power. It is a sacrosanct principle for the rule of law to prevail. James Bryce said that “when the questions arise, as to the limits of the powers of the Executive or the Legislature, or- in a Federation – as to the limits of the powers of the central or National and those of the State government, it is by a Court of Law that the true meaning of the Constitution, as the fundamental and supreme law, ought to be determined, because it is the rightful and authorized interpreter of what the people intended to declare when they were enacting a fundamental instrument.” It is the judges, who by their rulings contribute to the changing of law in order to meet the needs of the society. In imparting justice, they do not decide the issues on the basis of their preferences or opinions, but purely on the basis of law. This signifies their impartiality and open-mindedness. But today, this impartiality is severely doubted. The post-retirement appointment of judges cast severe questions on the unbiasedness in the judgements given before the retirement. The latest appointment of Former Chief Justice Ranjan Gogoi to the Rajya Sabha has put a scar on the judicial independence and must be criticized. He headed the benches that heard the issues of Ram Temple, the Rafael Fighter Jet Case, entry of women to the Sabarimala Temple and NRC. His appointment within the 4 months of his retirement has resulted in allegations of nexus between the judiciary and the executive. It is lending weight to an already gaining momentum regarding the weakening of the Judiciary.
CONSTITUENT ASSEMBLY DEBATES AND CONSTITUTIONAL PROVISIONS
“There can be no difference of opinion in the House that our judiciary must both be independent of the Executive and must also be competent in itself. And the question is how these two objects can be secured” -Dr. B.R. Ambedkar
The Constituent Assembly discussed in depth to provide for an independent Judiciary. Granville Austin who is responsible for documenting the drafting of our Constitution said that
“the intensive dialogues on apparently conventional issues concerning Judges’ tenure, salaries, pension and so forth were suggested by the desire to isolate the courts from attempted intimidation by forces included in or outside the government.”
On 7th June 1949, Prof. K.T. Shah moved a motion in the Assembly putting forward a new Article 193-A for imposing a ban on such appointments. It was Prof. Shibban Lal Saksena who supported this motion and emphasized on the importance of Judiciary to be above all the temptations. However, this suggestion was turned down by Dr. B.R. Ambedkar as he thought that the Judiciary is hardly interested in the Executive. He put forward his reasoning by giving the example of the Federal Public Service Commission saying that the commission is engaged in deciding upon matters in which the Executive has a role to play. The chances of influencing the commission are great and that of the Judiciary is very remote. But on seeing the present scenario, it looks like that the analogy drawn by him was flawed, as, today, the state has got an ample interest in knowing how the Judiciary works.
The only restriction imposed by Article 124(7) is to bar the judge of the Supreme Court from pleading in any court or authority within the territory of India. Article 220 imposes restrictions on the High Court judge on practice after holding the post of permanent judge. The 1st Law Commission, chaired by Mr. M.C. Setalvad, in its 14th Report emphasized on enacting a law proscribing further employment, except as ad-hoc judges to be appointed for a particular purpose under Article 128 of the Constitution, but it remained unimplemented.
INSTANCES OF HOLDING POLITICAL AND EXECUTIVE OFFICES
On many occasions, the retired Supreme Court Judges have held the political and executive offices. The best-remembered example is of Justice Fazal Ali. He is remembered for giving his dissenting opinion in A.K. Gopalan v. State of Madras. It was the 1st case decided under Article 32 by the Supreme Court. In this case, A.K. Gopalan challenged his detention under The Preventive Detention Act, 1950 as violative of Article 14, 19 and 21. The majority of the judges upheld the detention, whereas, Justice Faizal Ali was not in consonance with the government’s act. He was of the view that Article 21 should be expanded and personal liberty should be construed in a better way. His reasoning was later accepted in Maneka Gandhi v Union Of India. Though he gave his opinion against the government, still, he was appointed as the Governor of Orissa in 1951. There were no implications of quid pro quo, but M.C. Setalvad criticized this in his autobiography titled ‘My Life: Law and Other Things.’ He has also criticized the appointment of Mr. M.C. Chagla who was appointed as the Ambassador to the United States of America in 1958. Before this, M.C. Chagla was the Chief Justice of Bombay High Court and was a party to the Report of the Law Commission. This issue was also in limelight in 2014 when Palaniswamy Sathasivam, who was the Former Chief Justice of India was appointed as the Governor of Kerala. The allegation was made by the Congress that Sathasivam’s selection was a reward for he headed the bench that quashed the report incriminating the then BJP President Amit Shah in an encounter case in Gujarat. The instances of retired judges holding political offices also abound. Justice M. Hidayatullah was elected as the Vice President of India in 1979 after serving as the Chief Justice. Even Justice Ranganath Mishra was appointed as a member of the Upper House in 21998. Such appointments raise a question on the conscientiousness of judges.
Arun Jaitley, as a leader of the opposition, in 2012, said that the pre-retirement judgements are influenced by a desire for post-retirement jobs. Therefore, he suggested for a gap of 2 years after the retirement as a judge before occupying such opposition. This time period would serve as a cooling period in order to affirm the faith of the citizens in the Judiciary. This was also reiterated by Justice R.M. Lodha. In order to tackle this problem, we should also analyze the situation persisting in other countries. In the U.S.A, there is a mention of Canon 3, i.e. the principle in the ‘American Bar Association Model Code of Judicial Conduct’ which mentions the restrictions against judicial conduct in non-judicial affairs. The second measure that our country should adopt is to increase the retirement age of judges or should be allowed to perform their roles as a judge until death. On an average, the age at which a Judge of the Apex Court of U.S. retires is found to be 78 years, whereas, in India, Supreme Court Judges retire at the age of 65 years and High Court Judges, at the age of 62 years. The Venkatachalliah Commission was formed on February 22, 2000 to suggest the amendments to the Constitution. It recommended that the retirement age for the SC judge be increased to 68 years. Thus, it will give the judges, a long term and may result in judges avoiding the post-retirement appointments. Moreover, their expertise and knowledge can be retained for a longer period in the system. It can prove to be a successful measure if the government is in readiness to implement it.
The independence of the Judiciary serves as a shadow to the Constitution and bolsters democracy. Judges are considered to be proficient individuals who have great knowledge and years of experience. There is no doubt that we need their expertise in the working of various tribunals and commissions. Such positions should be occupied by persons in whom the people have their confidence. In this regard, it is the government that should make sure that the appointment is done with full integrity and uprightness. By doing so, it will increase the credibility of the judge. Judges are considered to be Gods of Justice. Thus, Judiciary, in this sense, is the temple that should not be subservient to the Executive but should work for the administering of justice in order to preserve the durability of Constitutionalism.
 D.M. Dharmadhikari, ‘Nature of Judicial Process’, 6 SCC 1 (2002)  Bryce James, ‘II Modern democracies’, 384-85 (1929)  M. Ershadul Bari, ‘Importance of an Independent Judiciary in a Democratic State’, 4 DULJ 1 (1993)  Stuart Chinn, ‘The Meaning of Judicial impartiality: An examination of Supreme Court Confirmation Debates and Supreme Court Rulings on Racial Equality’, Utah Law Review, 915 (2019)  Arghya Sengupta, ‘After the judges retire: Time for a fresh look at sensitive, judicial afternoons and evenings’, INDIA TIMES, May 8, 2019, available at https://timesofindia.indiatimes.com/blogs/toi-edit-page/after-the-judges-retire-time-for-a-fresh-look-at-sensitive-judicial-afternoons-and-evenings/ (Last visited on 9-04-2020)  ‘Former CJI Ranjan Gogoi takes oath as Rajya Sabha member’, BUSINESS TODAY, Mar. 19, 2019, available at https://www.businesstoday.in/current/economy-politics/former-cji-ranjan-gogoi-to-take-oath-as-rajya-sabha-member-today/story/398640.html (Last visited on 9-04-2020)  ‘Former Indian Chief Justice’s seat in Parliament raises eyebrows’, THE STRAITS TIMES, Mar. 19, 2019, available at https://www.straitstimes.com/asia/south-asia/former-indian-chief-justices-seat-in-parliament-raises-eyebrows (Last visited on 9-04-2020)  Dr. B.R. Ambedkar, CONSTITUENT ASSEMBLY DEBATES, Vol. VIII, 258  Granville Austin, ‘THE INDIAN CNSTITUTION: CORNERSTONE OF A NATION’, 218 (22ND ed. Oxford: Oxford University Press, 2014)  CONSTITUENT ASSEMBLY DEBATES, supra note 8, 229  Ibid  CONSTITUENT ASSEMBLY DEBATES, supra note 8, 259  “No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.”  “No person who, after the commencement of the Constitution of this Constitution, has held office as a permanent judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the High Courts.”  Law Commission of India- Fourteenth Report: Reform of Judicial Administration’, Sept. 20, 1958 (Vol. I, Ch. 5, 45-46)  AIR 1950 SC 27  Shiju Mazhuvanchery, ‘ OPINION: Pre-retirement judgements and post retirement posts- Judges and their Politics’, THE WEEK, Mar. 17, 2020, available at https://www.theweek.in/news/india/2020/03/17/pre-retirement-judgments-and-post-retirement-posts-judges-and-their-politics.html (Last visited on 11-04-2020)  AIR 1978 SC 597  Motilal C. Setalvad, ‘My Life: Law and Other Things’ (Reprint 2012, Universal Law Publishing)  Ibid  G. Pramod Kumar, ‘The real problem with former CJI Sathashivam’s appointment as Kerala Governor’, FIRSTPOST, Sept. 2, 2014 , available at https://www.firstpost.com/politics/the-real-problem-with-former-cji-sathasivams-appointment-as-kerala-governor-1692763.html (Last visited on 11-04-2020)  Bathuka Venkateswara Rao, ‘Crisis in Indian Judiciary’, 150 (Hyderabad: Legal Aid Centre, 2001)  ‘Post-retirement jobs: Should there be cooling off period for judges?’, FIRSTPOST, Oct. 1, 2012, available at https://www.firstpost.com/india/post-retirement-jobs-should-there-be-a-cooling-off-period-for-judges-475193.html (Last visited on 11-04-2020)  American Bar Association Model Code of Judicial Conduct, Canon 3 (2011)  Rishabh Manocha & Malvikka Arya, ‘Red Herring for Judicial Independence: Conflict of Interests and Post retirement appointments’, 4 South Asia Law Review Journal 110 (2018)  Ibid; 112  Ibid
National Law University, Lucknow
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