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