Judiciary: Pre-retirement judgments and post-retirement jobs

  • IASbaba
  • April 23, 2020
  • 0
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Topic: General Studies 2:

  • Structure, organization and functioning of the Executive and the Judiciary
  • Separation of powers between various organs dispute redressal mechanisms and institutions.

Judiciary: Pre-retirement judgments and post-retirement jobs

Context:  Post-retirement, former CJI Ranjan Gogoi was nominated to the Rajya Sabha

Independence of the Judiciary is ensured by constitutional provisions like

  • Judges do not hold their offices at the “pleasure” of the President
  • They can only be impeached by a special majority of both houses (Article 124(4)) of Parliament 
  • Article 121 and 211 provides that there shall be no discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties
  • The salaries and allowances of the judges are charged on the Consolidated Fund of India in case of Supreme Court judges
  • Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them
  • Both the Supreme Court and the High Court have the power to punish any person for their contempt (Article 129 and 215)

Why Former CJI Gogoi’s RS nomination caused controversy?

  • He had presided over politically sensitive cases (Assam NRC, Sabarimala, Ayodhya, Rafale, CBI) where all the decisions went in favour of the government. 
  • This gave rise to the impression that his nomination was a reward for these ‘favours’. 

Consequences of such appointments

  • The very fact that a judge accepts such an appointment could cast doubt on his judgements. 
  • The desire of a post-retirement job can influence pre-retirement judgments. 
  • It would signal that the judiciary is not independent, but is vulnerable to dictates of the executive
  • It will undermine the very constitutional values of impartiality in the dispensation of justice. 
  • It will also go against the clear demarcation of separation of powers
  • Deteriorates the Public Perception about the integrity of the Judiciary and thus the functioning of our Democracy 

Is it wrong for former CJI to accept RS nomination?

  • No, as Article 124(7) of the Indian Constitution restricts post-retirement appointments in Judiciary itself, but not in posts of president, governor, member of parliament, etc 
  • Former CJI Gogoi has viewed that membership of the Rajya Sabha was not a job but a service and hence there accepting RS nomination is nott ethically conflicting
  • With regard to judgements, former CJI has said that he did not deliver the judgements alone and that there were other judges also. Hence, there cannot be quid-pro-quo arrangements 

A possible Solution

  • In constitutional democracy, it is time to have a law in place either by way of a constitutional amendment or a parliamentary enactment barring/regulating post-retirement appointments of Judges.
  • Judges can be compensated by being given their last drawn salary as pension. 
  • Also, the age of retirement for judges can be increased by a year or two. 
  • These will undo the damage caused by post-retirement jobs

Connecting the dots:

  • Exploring the possibilities of cooling-off period before making such appointments
  • Post-retirement prohibitions on Election Commissioners

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