Judiciary: Pre-retirement judgments and post-retirement jobs

POLITY/JUDICIARY

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