At the behest of the Government
March 29, 2020
In exercise of the powers
conferred by Article 80 of the Indian Constitution, the President recently
nominated twelve persons who have ‘special knowledge or practical experience in
art, literature, science and social science’ to the Rajya Sabha. Among these,
one nomination of ex-CJI Ranjan Gogoi within less than six months of his
retirement raised eyebrows in the media and also received backlash with even
former BJP minister Yashwant Sinha urging him to not accept the nomination. This
incident calls for a bigger discussion on post-retirement positions and its
essentiality, if any.
Nothing
New
Retired Judges being
appointed in government positions is nothing new in the Indian Republic neither
is criticisms against such appointments. Justice Fazl Ali in 1952, was among
the earliest Justices who became Governors and this tradition continues even
now- recently CJ P. Sathasivam was the Governor of Kerala. In 1958, Chief
Justice M.C Chagla resigned from Bombay High Court to become India’s ambassador
to USA at Nehru’s behest. There has even been resignations to contest elections
as in the case of Justice Baharul Islam who resigned from Supreme Court to contest
from a Congress(I) ticket. As early as 1960, then Attorney General M.C.
Setalvad complained that the Supreme Court Justices are inking with their
future in mind.
The retirement age of 65
for SC Justices was set when the life expectancy in the nation was 32 years (1951).
Now, the average life expectancy is
67.9 (2011), given that the Justices are among the elites, it is safe to assume
that they live longer than that. This leaves more active years for the SC
Justices even after retirement thereby planning the future becomes desirable to
maintain the same social status in the society. Through this argument it can be
seen that increasing the retirement age to a minimum of seventy is one of the
ways to reduce biases and longing for post-retirement perks. Placing a
moratorium of five to seven years after retirement before accepting any
government positions is another suggestion put forth. Justices in the Federal
Court of USA can continue to judge for their entire lifetime or until when they
decide for retirement thereby reducing favours for future government positions
to a minimum. This is another solution to ponder on.
The
Gogoi Example
“Not only must Justice be done;
it must also be seen to be done”
Laws are reflection of
societal norms codified through time. The judges who enforce such laws are
required to be honourable, uncorrupt persons with noble character. The character
and conduct of a judge is important because it is a way of assuring the society
of fairness and equality. Ex-CJI Gogoi was aware of this when he claimed that “reputation
is the only thing a judge has and even that is attacked” when the case of
alleged sexual harassment against him was put forth. There are punishment for
contempt of courts for this same reason that reputation of the courts is of
paramount importance for to have an orderly society governed by the rule of
law.
During his tenure as CJI
of India, Ranjan Gogoi made many judgements which seem to have been favourable to the government. He administered the
NRC in Assam, judged the CBI crisis, was seen
by the critics as siding with the government on the Kashmir issue and most importantly
ruled in favour of the Hindu community in the Babri Masjid-Ram Janmabhoomi issue which was seen as a win
to the government. Critics have lashed out that this nomination is a “thank-you
post” for being favourable to the government.
Thus Gogoi accepting this
nomination seem to validate critics’
claims thus even if there was no quid-pro-quo,
the society might suspect such arrangement. This in turn raises questions on
the independence of the judiciary and such questions destroy societal order and
trust on the rule of law.
Is
it Time?
Lawyer and Author Abhinav
Chandrachud refers to an argument between K.T Shah and B.R. Ambedkar in the
constituent assembly regarding the role of Justices post-retirement. K.T. Shah
argued that judges should not be allowed to hold executive positions after retirement
because “no temptation should be
available to a judge for greater emoluments or prestige which would in any way
affect his independence as a judge”. This suggestion was however rejected
by Ambedkar as he thought that “judiciary
decides cases in which the government has, if at all, the remotest interest, in
fact no interest at all”. A lot has changed since Ambedkar’s time as now
the government is one of the largest litigants in the court.
Judiciary, executive and
legislature are the holy trinity of polity, and it is most desirable that the
three are separated and act as checks for each other. Among these, Judiciary
has the most to lose in terms of reputation as seen already, so it is paramount
that it remains and shows that it remains independent against all odds. In an
effort to cement this independence the 14th law commission report
recommended banning government positions for retired Justices altogether but
was not heeded by the government.
Supreme Court judges do
not hold offices until the ‘pleasure of the president’ but have security of
tenure to maintain their independence. A judge can only be removed only on the
grounds of proven ‘misbehaviour or incapacity’ and accepted by the parliament
with special majority in both houses. The fact that no Judge has been impeached
yet is a testament to Constitution’s commitment to judicial independence.
In the same way, is it
time to extend the same commitment to judicial independence regarding post-retirement
government positions? After all, it was the same ex-CJI Gogoi who insisted on a
‘very strong viewpoint’ that post-retirement appointment is a “scar on the independence of judiciary”
back in 2019 when he was sitting CJI. Is it time that we accept K.T Shah’s
suggestion to uphold judicial independence? These are questions that must be
answered soon; for the Indian Republic is built on the bedrock of these very
institutions.
By Benolin
Mute Spectator
is the primary series of the blog where we express our opinions on current
affairs
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