Three organs of government we all know as the Executive, the Judiciary and the Legislative represent the people and the country's will. It is necessary to keep the three organs of the government independent in a democratic state. Separation of power is that when a single power or group has to be separated to prevent the abuse of power. The power and function of government in free democracy will always be separated and exercise its organs in its domain. India is a democratic state. Separation of power is a basic structure of the constitution. But the scenario of Indian constitution of separation of power is different as there is no strict separation of power in India. Article 50 of the Constitution says there shall be separation of judiciary from executive. The State shall take steps to separate the judiciary from the executive in the public services of the State. But there is nothing mentioned about the separation of judiciary from legislation.
Questions were raised that what will be the validity of appointment of Supreme Court judges in Rajya sabha. Recently, the former Chief Justice Ranjan Gogoi has been appointed as a member of Rajya Sabha by the president’s nomination as per article 80 of Indian Constitution. Under article 80, the president has power to nominate 12 seats of Rajya Sabha. The news is that Former CJI Ranjan Gogoi is nominated as the member of Rajya Sabha by the president of India. The president on his own discretion after taking advice from the Council of Ministers may appoint member of Rajyasabha . The person of who is appointed by President shall be of special knowledge and practical experience in respect of matterofs as literature, Arts and social social services. Former CJI Ranjan Gogai do fit for the nomination as a Rajyasabha member. Former Chief Justice of India Ranjan Gogoi who handle the Chief Justice of India in cases like Ayodhya Babri Masjid dispute triple Talaq and rafeal deal. Chief Justice of India Ranjan Gogoi has accepted the nomination by the president for the member of Rajyasabha. He accepted this offer. But personally he always said that the judges should not accept the post retirement job offer by the government if any judges accept the offer then it will be scar on judiciary. Gogoi had also organised a Press Conference in 2018 against current CJI Deepak Mishra saying that democracy was in in dangered. After the retirement Ranjan Gogoi why he accepted the offer only he knows. After acceptance he said only that I accepted it since I am confident that the legislature and Judiciary must at some point of time work together. This was not new thing that Supreme Court Judges who appointed by the government in any job post like for a quasi-judicial body or constitutional body. CJI Rangnath Mishra was also appointed to Rajya Sabha by the Congress government after his retirement. Justice Behrul Islam who was a Rajya Sabha member from the Congress after his retirement. As per the research, between 2002 and 2014 over 72% of retired Supreme Court Judges got selected for job post by the government. This was the different chief justice Ranjan Gogoi appointed after only his four month retirement cast a shadow of doubt on the credibility of past judgement which is delivered by him. Gogoi ‘s appointment for the Rajya Sabha unprecedented.After four months retirement is cooling period for any judges but he accepted this proposal. We all know the the President of India’s nomination is the order for any people but why not people think that it is a gift by the president for his hard dedication judgement because he has delivered that cases judgement which was the core intrest of rulling party in center.The BJP had formed on the basis of Hindutva and the name of Rama and the disputes of Ayodhya titile disputes and etc. Some of supporters of Government have said that the Congress has nominates justice Rangnath Mishra to the Rajya Sabha in 1998 after the retirement.This was the the always agenda of leaders in India for any government side leaders Or minister as well as oppistion side. Both side always are ready to alleged each other. But the difference is only at time of
Congress rulled BJP had criticise and now congress have criticise. These things were happening before many decades. This was not the first offered for the post retirement judges political job by the Modi government. In 2014,former CJI P. Sathashivam who was appointed Governor of Kerala. Justice Gaur retired on August 23 and within week he was appointed the chairman of appellate Tribunal for the PMLA. Justice Hidayatullah is case is different from justice Ranjan Gogoi . Justice Hidayatullah's appointment was he had retired in 1971 in Congress government was in power and he was elected a vice president by both the house of parliament in 1979 in Morarji Desai Janata Party government. The point is that the judge must not be given any government post on nomination because judiciary in itself solve the matter of political issue and dispensation. So if an offer is for any retired judges the honesty for the democracy and separation of power of country lies on the services to not accept those offer.
This things happen in India but there are no any laws which can restrict the post retired judges shall not be appointed by the government for any post. But in somewhere there is assault on the separation of power which is the pillar of our democracy. If a usual and uniform policy is made by the Supreme Court that after retirement of the judges will not take government job or nomination in any house. It will be beneficial or we can say good for the faith and believe of Judiciary.but in the absence of any such rules and regulations we cannot target the judges. For the supreme court it should be independent and free from any political issues we all know the judiciary solves all the matter related to political issues but if judiciary should seperate from any legislative and Political matter and also free from any Political bias this will good for judiciary and the faith will be maintained on judiciary. It required high standard of conduct and certain level of restrain on judges should be maintain the public confidence on the judiciary. The first Supreme Court should take initiatives to restrain the judges on some extent because it is apex of of country if it will maintain these restrain then after sometimes it will be validated in for all the judges. Why this is required because this will be good for seperation of power and also for free democracy which is the spirit and basic structure of Constitution. Ranjan Gogoi has accepted the appointment as Rajya Sabha MP has damaged the perception of independence of judiciary. Those judgement he has delivered directly and indirectly benefited the government somewhere public can think it that it is awarded by Government for his courageous judgement like Ayodhya title disputes case and triple talaq. But he is not an exception to that justice Gogoi has violated the independence of judiciary. It may also that he has been influenced by the government work and the work of prime minister made on him a impression to work for his government. We he get impress because he may look forward for government post to join the initiative of government's work with his career 's judicial experiences. The question of validity of nomination and appointment of judges of Rajya Sabha the Recommendation of Law Commission of India it was 15 report of Law Commission of India in 1958 Pandit Jawaharlal Nehru was the prime minister of that point of time. According to the report, the Law Commission says we have noticed on the 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 results, some Supreme Court Judges after retirement setup chamber practice and some have found employment in important position in government. But this is consistent with the dignity of retired judges. Paragraph 29 of the 14th Law Commission report is also mentioned that there can be no doubt that it is undesirable that Supreme Court judge suit look for the government job post after retirement.
By Law Commission also told on the question of validity of judges to appoint the member of Rajya Sabha and an employment says the government is a party in a large number of causes in the apex court and maximum public get impression that a judge who might look forward to being employed by government after his retirement. After the statement of BCI it has cleared that the Judiciary and legislature are not a separate planet. Independence is not compromised by any good dialogue between the legislature and judiciary.
The Bar council of India has also stated that there is nothing wrong to a judges cannot be appointed by The President of India. It was the Gazette of the president of India and it is upon his discretion to appoint any person on the basis and provision of article 80. And the point is that he is not appointed by any political party so there is no question of political matter.
Appointment and Employment of retired judges have been happening for decades. In most cases of position had raised voice against the practice taking on high moral ground. But Congress and other opposition and othef oppostion are doing right now on selection of Rajya Sabha MP of justice Ranjan Gogoi what BJP leader had done earlier. PIL has been filed by Madhu Purnima kishwar who challenging the validity of nomination of former Chief Justice of India Ranjan Gogoi as member of Rajya Sabha. Her ground is that can independence of Judiciary or basic structure of constitution and it is the pillar of our democracy. It amounts to an assault on the independence of Judiciary if judges appointed by the government. She said that his nomination by the the president give it the the colour of a political appointment and therefore it casts a shadow on the doubt of belief and faith on judgement of Supreme Court. As the Judiciary relies on the faith of citizen in it any act which creates an adverse impact about the independence of the court like in nomination of Ranjan Gogoi it amount to damage on the independence of Judiciary system in India. It is also acknowledged that Unlike the offices of comptroller and Auditor General are member of UPSC the framers of the Constitution did not explicitly restrict the judges of supreme court and high court to take up any public office post retirement. This is become the judges were expected to conduct themselves in such a manner their retirement not to create an adverse impression about the independence of judiciary. Justice Ranjan Gogoi appointment is matchless. Justice Ranjan Gogoi presided the benches of Supreme Court that decided the cases such as rafel deal and Ayodhya title dispute both cases judgement that suited the BJP. Actually the government is main or bigger litigator before the judiciary every such appointment puts the question of ability of judicial independence. So the supreme court decides to stop the political appointment. There was also an occasion when the former CJI Ranjan Gogoi delivered his speech in the Ramnath Goenka lecture in 2018 in his speech as he said that the country need not only noisy journalist and independent judges but also independent journalist and noisy judges. One expected thus Chief Justice of India that he would be independent in the interest of justice and uphold the basic law of land. Justice Ranjan Gogoi has done in his handled case with noisy voice and deal the cases with the demand and sake of judicial limit. But it may be he wanted it that to be a noisy post retirement as a member of Rajyasabha to work for the country with his experiences. Former Union Minister late Arun Jaitley had said in 2012 there are two different kind of judges those who know the law and those who know the law minister so that’s why pre-retirement judgement influenced by post retirement jobs. These naration fit on justice Ranjan Gogoi. This is different matter he wanted to work for country we think It is applicable on all citizens to think for country. Ranjan Gogoi is also a citizen before he was a judge Or chief justice of India. If judges think to do for nation in between there is no wrong because no any such law in India to prohibit them.
For the Judiciary’s matter of its transparency and accountability. It is the office of the judges of Supreme Court and high court. No any statutes provides any function and mechanism for the accountability of judges accept the Constitution that is provides for the political process should be remove from office on the ground of in capacity. The judges should not be given any post after retirement but they must get it salary as pension. The Judiciary decided political question so if an offer is made the onus of the judges lie to not accept. It is not question of legality but matter of proprietary because there is no any law on it only upon the services to maintain separation of power and independence of judiciary.
Varun Pandey
B. A. LLB
Central university of South Bihar