POST RETIREMENT APPOINMENTS: A THREAT TO INDEPENDENCE OF JUDICIARY

POST RETIREMENT APPOINMENTS: A THREAT TO INDEPENDENCE OF JUDICIARY

“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.” ~ Caroline Kennedy

The doctrine of Separation of Powers (SOP) came into existenceto demarcate the boundaries for the functioning of all the three organs of the state: Legislature, Executive and the Judiciary.It provides for a responsibility to the judiciary to function as a supervisory body to check whether the executive and the legislature are functioning within their limits as envisaged under the constitution. This task given to the judiciary to supervise the doctrine of SOP cannot be carried on in true spirit if the judiciary is not independent in itself. The article addresses the dilemma of retired judges taking government positions following retirement. These appointments have many repercussions. It destroys confidence in the judiciary's independence. It also influences decisions delivered by judges during their tenure. The article provides some alternatives as well for this problem.

An independent judiciary supports the base of the doctrine of SOP to a large extent. An Independent Judiciary is asine qua non to protect the Rule of Law in any civilized society. Emerging from Montesquieu’s Doctrine in the early 18th century, the concept of Judicial Independence continues to hold a place of prominence in all modern democracies. The framers of the Indian Constitution found that it was imperative to incorporate in the Indian Constitution provisions for establishing and maintaining Judicial Independence. Dr. B.R. Ambedkar, the Chairman of the Drafting Committee,captured the kind of Judiciary that the Constitution of India would afford to the people of India in the following words: “There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself.”Under the Indian Constitution, The Directive Principles of State Policy in Art. 50 mandate that the State take steps to separate the judiciary from the executive in the public services of the State and also contemplates a separate judicial service free from executive control. Overall, the provisions relating to the appointment, removal, tenure, and salary of the Supreme Court judges give a clear impression to make judiciary an independent organ of the state. Moreover, Maintenance of Separation of Powers has been recognized to be a part of the “basic structure” of our Constitution.[1]

However, when some judges over the years continued to take positions offered by the government, the clear demarcation between the judiciary and the executive became blurred. The controversy over judges taking post-retirement work is a recurrent issue. It threatens to weaken popular confidence in the independence of the judiciary.

A few years ago, the ruling BJP government appointed a former Chief Justice of India (CJI) as Governor. The current case is of former CJI, Ranjan Gogoi, taking oath as Member of Parliament. This appointment is controversial as during his tenure as CJI, Justice Gogoi presided over important cases such as Ayodhya and Rafale, where all the decisions went in favor of the government. This gives people the impression that his nomination is a quid pro quo for these ‘favors’. Thus, his nomination within a few months of his retirement not only sparked controversy but came in for strong criticism from all sides.

Arun Jaitley, former Law Minister, has shared a scornful assessment of judges. He remarked,“There are two kinds of judges - those who know the law and those who know the Law Minister,” and pointed out that “We are the only country in the world where judges appoint judges,” he said, adding, "Even though there is a retirement age, judges are not willing to retire.“Pre-retirement judgements are influenced by post-retirement jobs.” However, BJP chief Nitin Gadkari suggested a two-year wait should be mandatory for judges after they retire and before they are appointed to judicial commissions or tribunals.

Some judges indicate self-regulation, such as Mohammad Hidayatullah, the former Chief Justice of India, who, at the hearing of the Privy Purse lawsuit, refuted claims of taking up the offer to be nominated to the World Court or as Lokpal. He was appointed as Vice-President only after nine years of retiring from his post as a Supreme Court judge.[2] But some have taken advantage of the lack of a cooling-off time rule to turn between their roles as a judge and a politician, creating an appearance that, once in office, judges can still seek for political positions and post-retirement benefits.[3]

Therefore, it is indispensable for India to have a 'cool off' period given by the law by which judges should not be able to take up any government role, or jobs, or even constitutional or political roles, up to at least two years after their retirement. For this, an amendment in Article 124 (7) of the Indian Constitution is required whereby a retired Supreme Court Judge, in addition to being forbidden to ‘plead or act in any court or before any authority within the territory of India’, should also be disallowed to be appointed to the posts of President, Governor, Member of Parliament etc. for upto two years of retirement.Similar requirements should be in place for the High Court judges too. For this, the government should bring legislation outlining the two-year cool-off period for judges at all levels of the judiciary. Another alternative suggested is to increase the retirement age,which would reduce the chances of retired Judges looking for other opportunities. Presently, the Supreme Court Judges retire at the age of 65[4] while the High Court Judges retire at 62.[5] This seems arbitrary and unjust in light of the fact that the retirement age of Chairpersons/Presidents in various Tribunals, which positions are statutorily occupied by retired Judges, is 70. The retirement age for the Supreme Court and High Court Judges should be at par with that of the Tribunal President/Chairperson. This would prevent the Tribunals from becoming “havens of retired persons”.[6]