The trend of appointing the judges in the rajya sabha Is going on soon after the independence, various judges have been provided the opportunity to join the politics many denied and many accepted. From 2001-2012 nearly 70 percent of the retired judges got appointment by the government . the most recent appointment by the government is of former chief justice of india Ranjan Gogai.
This appointment raised many questions because soon after his retirement Ranjan Gogai was nominated to the rajya sabha by the president Ram Nath kovind .This raised many objections because only after 4 months of his retirement that he was nominated to the rajya sabha , now this raises the question about the credibility of the judgements he gave during his tenure , this appointment is clearly casting a shadow over the independence of the judiciary , it is an infringement to the separation of the powers and it disturbs the basic foundation of the constitution.
This is what Ranjan gogai said in one of his interviews in Guwahati: "I accepted it since I am confident that the legislature and the judiciary must at some point of time work together for nation-building. My presence in the Parliament would be an opportunity to underline the views of the judiciary before the lawmakers and vice- versa."
There is no law or constitutional provision that prohibits such a nomination. Nor is this an unprecedented decision by the government. Still, it is not a good practice that a government nominates or appoints a former Supreme Court judge or even a high court judge to some office within months of her or his retirement.
The law commission said in one of its report , "we have noticed the only bar imposed on a Judge of the Supreme Court who has retired is that he shall not thereafter plead or act in any Court or before any authority. In the result some Supreme Court Judges have, after retirement, set up chamber practice while some others have found employment in important positions under the Government. We have grave doubts whether starting chamber practice after retirement is consistent with the dignity of these retired judges and consonant with the high traditions which retired judges observe in other countries."
The Paragraph 29 of the same report of the Law Commission is more direct saying, "But there can be no doubt that it is clearly undesirable that Supreme Court Judges should look forward to other Government employment after their retirement."
Explaining the reason for why Supreme Court judges should resist such offers from the government, the Law Commission report says, "The Government is a party in a large number of causes [cases] in the highest Court and the average citizen may well get the impression, that a judge who might look forward to being employed by the Government after his retirement, does not bring to bear on his work that detachment of outlook which is expected of a judge in cases in which Government is a party."
"We are clearly of the view that the practice has a tendency to affect the independence of the judges and should be discontinued," the Law Commission concluded.
Compromising 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 executive wing i.e president, governor, member of parliament, etc.
Thus, the post-retirement appointment of judges may infringe the judicial independence. This is because some judges — not all — are offered post-retirement employment by the government.
It is often feared that a judge who is nearing retirement can decide cases in a manner that favours the government in order to get a favourable post-retirement appointment
Disturbing the basic foundation
If a judge decides highly controversial and contested cases in order to please the government and then accepts a post-retirement job, even if there is no actual quid pro quo, would this not lead to the public perception that the independence of the judiciary is compromised. When a judge decides to take such a proposal by the government his all work is seen with the perception of favouring the government.
Opinion of Several Former Chief Justices and ministers
In the 1980s, it is believed that post-retirement employment with the government was undermining the independence of the judiciary.
Chief Justice Y V Chandrachud felt that some judges were looking for post-retirement positions and writing judgments with that in mind.
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.
Former Delhi high court chief justice said AP shah said, “it sends out a message that if a judge gives judgment in favour of the executive , he/she will be rewarded”
Arun jaitley Former union finance and law minister late Arun Jaitley had said in 2012: "There are two kinds of judges - those who know the law and those who know the law minister" before adding, "Pre-retirement judgements are influenced by post-retirement jobs
First, some judges take up a private job and not any public posts. The three previous CJIs — justices T.S. Thakur, Deepak Mishra and Jagdish Singh Khehar — have done this. They have used their experience and skills in other areas.
Second, some judges get appointments from the Supreme Court itself. One such example is Justice R.M. Lodha who was handed the BCCI case
Third, some judges become politicians but continue their judicial appointments at the same time. V.R. Krishna Iyer became a Supreme Court judge after being a minister in Kerala’s Communist Party government. Justice Koka Subba Rao resigned from the Supreme Court to be the opposition’s candidate for President. These people have not hidden their political positions, which is really a great thing.
Fourth, judges who take statutory jobs. These are posts with body’s like the National Green Tribunal and the National Human Rights Commission. Eventually, politicians are the ones who assign these positions and they don’t necessarily do it on the basis of a judge’s merit.
Fifth and finally, judges who get political positions. Justice P Sathasivam was appointed Governor of Kerala by the Narendra Modi government in September 2014. He was part of the Supreme Court bench that quashed a second FIR against Amit Shah in the Tulsiram Prajapathi case in April 2013.
Getting a nominated position in Rajya Sabha is perhaps the lowest in the list. Because such appointments raises many questions.
There are several juges who also took the govts proposal but they can not be compared to the case of ranjan gogai , because there was no cooling off period ,right after his retirement he was nominated by the president. Though The president has the power to nominate members in the rajya sabha on the basis of their contribution in the field of arts ,literature, sciences and social service . but clearly ranjan gogai does not fit into any of these category, so the nomination can be called quid pro quo.
Quid pro quo appointment
Now we can clearly see that the various judgments given by Ranjan gogai was in the favour of the government, so if this was an thank you appointment then the government is very thankful because Ranjan gogai helped in the effecting of the National Register of Citizens (NRC) process in Assam . He paved the way for a return of supposed Bangladeshi Muslims to Bangladesh which does not want them. He kept Rohingya issues delayed so that he could sweep over it . In essence, he paved the way for the Citizenship (Amendment) Act.
He also helped Hindutva through the Babri case by dramatic, speedy proceedings that resulted in a twisted verdict which favoured the government’s . This is equally true of the transfer of high court judges. Its very suspicious how Ranjan gogai gave the ayodhya verdict soon before his retirement and the verdict was also in the favour of the government and for this favour now the government is rewarding him for his favour.
In addition, he helped the government through the Central Bureau of Investigation (CBI) crises and by completely diffused the Kashmir crisis. At every twist and turn, he passed on important cases to selected favourite Supreme Court judges, overlooking his own January 2018 protest in this regard when he was a junior judge in the Supreme Court. No CJI could have done more for the government in power – not even when compared with judges appointed by the Congress who helped them before, through and after the Emergency.
Way Forward
Several 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.
In this context, the example of former CJI-Mohammad Hidayatullah who joined the politics after so many years of retirement.
Cooling-off period
Officials who retire from sensitive positions are refrained from accepting any other appointment for a period of time, normally two years.
Generally the period suggest
These cooling-off periods are very important because they tends to curb the suspicion of quid pro quo and the new appointment is not seen as a favour from the government .
There are various judges who joined the administration after the cooling –off period and there were no questions raised on their appointment , below given are the various examples of such judges.
Baharul Islam
was an Indian politician and Judge of the Supreme Court of India .He was elected to the Rajya Sabha, upper house of the Parliament of India as a member of the Indian National Congress and in 1972 he resigned from the Rajya Sabha to became a judge in the Gauhati High Court after he retired as chief Justice of the Gauhati High Court he was recalled and made a Judge of the Supreme court. He gave a Judgement in the case absolving the then Congress Bihar Chief Minister Jagannath Mishra in the urban cooperative bank scandal and later resigned from the Supreme court to contest elections as a Congress party candidate and was elected to the Rajya Sabha
In this case baharul islam was not nominated by the president in the rajya sabha instead of being nominated he was elected as the member of rajya sabha , which is really honourable.
Ranganath Mishra
was as the 21st Chief Justice of India, serving from 25 September 1990 to 24 November 1991. He was also the first chairman of the National Human Rights Commission of India. He also served as Member of Parliament in Rajya Sabha from the Congress Party between 1998–2004. He is the second Supreme court judge to become a Rajya Sabha member after Baharul Islam who was also elected as Indian National Congress member.
Though ranganath mishra took the post retirement position in the rajya sabha but he joined after several years of his retirement.
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 going 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.
However, Justice Hidayatullah made it very clear that even if he were offered any of these positions, he would not accept them.
Also, Justice Hidayatullah was appointed vice-president nine years after his tenure as CJI ended.
All these above mentioned judges joined the politics after the cooling off period , so these appointments do not questions the credibility of their work as an judge .
PIL filed against Ranjan gogai
Talking about the recent nomination Academic and activist Madhu Purnima Kishwar has filed a public interest litigation in the Supreme Court against former Chief Justice of India Ranjan Gogoi’s nomination to the Rajya Sabha. In her petition, she alleges that Gogoi’s appointment casts a shadow in the independence of the judiciary. To stop this, Gogoi’s appointment must be stayed. In addition, she has said that restriction on post-retirement jobs for high court and Supreme Court judges should be put in place, as has been done in the Lokpal and Lokayukta Act, 2013.
In march 2019, a supreme court bench ,headed by Ranjan gogai , said that there is a valid ‘strong viewpoint’ that the post retirement appointment of the judges in the tribunals is a “scar” on the independence of the judiciary.
In my point of view a judge should not take any kind position in the government offices because a judge is a constitutional servant not a government servant .
To stop these kind of appointments there should an amendment in the constitution so that the judges after there retirement does not opt for the service in the government , secondly the age of the retirement of the judges should be increased so that they need not to find another job after their retirement , the pension of the judges should be increased so that after retirement they don’t face any kind of financial problem, these measures can be taken to curb the judges from joining the politics.
When a judge takes such positions in the executive wing it goes against the separation of powers i.e all the three wings of the government should not interfere in each other functioning .
Post retirement appointments in the government is a scar , it sets an very bad example as the prior work of the judge’s is seen as a favour to the government and the government in return of that favor is providing them this opportunity . Accepting such proposals will shake the confidence of the common man on the independence of the judiciary .
Justice T.S thakur should be taken as an example when he was offered the seat in rajya sabha he rejected it , we cant stop the president from nominating the judges in the rajya sabha because it comes under his power , but what one can do is reject such an offer which is made by the government , because if one judge accepts these kinds of offer than it sets an example for the other judges i.e this is what you will get after the retirement if you deliver the judgment’s in the favour of the government .
Such appointments casts a shadow over the independence of the judiciary , our great nation continues to be firmly grounded on the basic structure and constitutional values, thanks mainly to the independent judiciary. The moment this confidence of the people is shaken, the moment there is a perception that a section among the judges are biased , the tectonic alignment of the nation built on solid foundation is shaken. Only to strengthen this alignment , the collegiums system was introduced by the supreme court in 1933 to make judiciary completely independent and not interdependent.
Post – retirement jobs are used by the political establishment like a carrot and stick. More than being a reward for the retired judge, the offer of a prosperous post -retirement job is a message to judges who are still working that if you will help us and we will take care of your future.
The government is by far biggest litigator before the higher judiciary. Every such appointment puts under question the courts ability to adjudicate matters without fear or favour. The supreme court should stop these appointments , unless the independence of the judiciary will continue to suffer. At last I would like to conclude that such appointments should be curbed unless the judiciary is going suffer a lot from the political pressure. Though there is nothing unlawful in such appointments but it still harms the independence of the judiciary and it also disturbs the basic foundation of the nation .
Presented by - Jagdeep Singh
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