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
