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Nomination Of Retired Judges To Rajya Sabha: Judicial Propriety On Trial?

Shortly after retirement, Ranjan Gogoi who served as the 46th Chief Justice of India nominated to the Rajya Sabha and his acceptance of the same has raised serious concerns and questions few times back on independence of judiciary which is often interlinked with the doctrine of separation of powers forming part of basic structure of the Indian Constitution. In the light of the above facts, let us understand what doctrine of separation of power entails and the socio-political implications of such nominations. The following article also talks about essential elements of Independent Judiciary and often debated issue of post retirement jobs for judges of Supreme Court and High Courts.

Doctrine of Separation of Powers:

India being a constitutional democracy works on the principle of separation of power, i.e., division of power between three branches- the Legislature, Executive and Judiciary. Legislature should use only law making powers, Executive should undertake only law enforcement functions, and Judiciary should perform only adjudication/judicial functions. Their powers and responsibilities should be clearly defined and kept separate. The doctrine well propounded by Montesquieu in words, Without separation of power there would be no liberty.

As per French Declaration of the Rights of Man, 1789, Any society in which safeguarding of rights is not assured and the separation of power is not established, has no Constitution. Also Maurice Vile influentially articulated that to each of these branches, there is a corresponding identifiable function of government, legislative, executive, or judicial.

Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.[1]

Thus from the above discussion it can be well concluded that if the judicial and legislative powers are combined in the same organ, the interpretation of laws becomes meaningless because in this case the lawmaker also acts as the law interpreter and he never accepts the errors of his laws. If the judicial power is combined with the executive power and is given to one-person or one organ, the administration of justice becomes meaningless and faulty because then the police (Executive) becomes the judge (judiciary).[2]

Article 50 of the Indian Constitution provides for separation of power. There are also some important case laws dealing with this. In the Re Delhi Laws Act case,[3] it was for the first time observed by the Supreme Court by a majority of 5:2, that the theory of separation of powers though not part and parcel of our Constitution, in exceptional circumstances is evident in the provisions of the Constitution itself. Since then it was further elaborated in various judgments like Keshvanand Bharti v. State of Kerala[4] and Indira Gandhi Nehru v. Raj Narain etc.[5]

Indian Constitution though has not recognized the doctrine of separation of powers in its absolute rigidity but the functions of different parts or branches of the Government have been sufficiently differentiated and thus it can be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belongs to another. Thus while we do not follow the doctrine in rigid sense like in America but we do consider independence of individual judges.[6]

They should not be influenced by pressure from Government and other political group. The popular image of Judges carries significant element of truth. Thus the nomination of retired Justice has raised sense of doubt among the informed citizens due to Independence of Judiciary being compromised. This comes from the fact the former CJI having presided sensitive cases (Sabrimala case, Ayodhya Judgment, Rafale, CBI and Assam NRC) in which government was a party.

Constitution provides many safeguards to maintain the independence of Judiciary. Article 124(7) provides that a retired Supreme Court judge cannot plead or act in any court or before any authority within the territory of India.[7] It is often feared that a judge who is retiring shortly may decide cases in a manner that may please government to get favourable post retirement job. Thus there is loss of Constitutional Proprietary. And thus confidence in Judiciary is lost. Article 148(4) of Constitution reads as:
The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.[8]

Similarly Article 319 deals with chairman of Union Public Service Commission.[9]There are no such explicit provisions for judges of Supreme court and High courts as they were expected to conduct themselves in such a manner even after their retirement so as not to create an adverse impression about the independence of judiciary.

Independent Judiciary:

The doctrine of separation of powers also implies independence of judiciary so let us discuss the elements of Independent Judiciary:[10]

  1. Appointment of Judges: Conditions for appointment of judges should be a healthy one so that men of keen intellect, high legal acumen, integrity and independence of judgment from among the lawyers get opportunity to be judges. If there is any scope of personal favoritism and political bias will compel the people to withdrew their confidence from the judiciary.
     
  2. Adequate remuneration and privileges: The conditions of salaries and other privileges must be such that they cannot be varied to their disadvantages during the tenure of their office. This is why in democratic countries judges are paid their salaries and allowances from the consolidated fund of India.
     
  3. Tenure of judges: The TOJ is another fundamental aspect of judicial independence that is closely connected with judicial appointment.
     
  4. Institutional independence of the judiciary.
     
  5. Discipline of Judges: Discipline of judges is closely related to judicial accountability and there is a relationship between judicial accountability and judicial independence.
Without proper control or accountability judiciary may be arbitrary.The general causes of discipline are: incapacity, misconduct, corruption and criminal offence and the available mechanisms for discipline are: parliament, judiciary and independent commission.

This bring us towards the last and most impotant issue that the article seeks to address, i.e., the problem of post retirement jobs of judges of Supreme court and High courts. Retired Judges have been appointed to political office since Independence, including Justice Fazl Ali(Governor of Orissa), Justice P. Sathasivam (Governor of Assam). Justice Subbha Rao who ran for presidential election after resignation was also criticized owing to the fact that he was holding discussions with the opposition leaders while he was in office raising questions on Judicial Propriety.

The case of Justice Baharul Islam is interesting one, who was elected to Rajya Sabha on Congress ticket . It was seen as a quid pro quo for exonerating a Congress chief minister in a corruption case. Similar was the case of Justice Ranganath Misra. Thus such acts tarnish not only the image of Judiciary but also the commitment of political party to Constitutional values.

Supreme Court judges after retirement have also served in org. like NHRC, National Consumer Dispute Redressal Forum, Armed Forces Tribunal etc. They act as an asset due to their valuable experience and insights. However government sponsored post-retirement appointments will continue to raise suspicion regarding dispense of justice. Judges accepting jobs under the executive certainly create situations of conflict of interests. In its 14th report in 1958, Law Commission recommended banning post-retirement government employment for Supreme Court judges because because government was a large litigant in the Courts, though never been implemented by the Government.[11]

Conclusion:
Independence of judiciary and separation of power is essential in a democracy in order to ensure there is no abuse of power or conflict of interests and that the three branches work in harmony rather than interfering with each other.

However there are limitations to it as it may result in creating administrative deadlock and there is always some role of executive in rule making or role of legislature in carrying out certain judicial functions. Thus though we do not follow it in rigid sense as also stated in Ram Jawaya Kapur v. State of Punjab[12] but we do owe allegiance to system of checks and balances thus such nominations of judges post retirement may shake people’s faith in judiciary but how do we deal with this dilemma of post retirement jobs of judges is yet a challenge.
  • Former CJI RM Lodha recommended a cooling-off period of at least 2 years like several administrative bodies requiring a cooling off period for individuals to eliminate the possibility or suspicion of a conflict of interest or quid pro quo.
     
  • Appointment process should not result in decision being influenced if the government itself is a litigant and appointment authority at the same time.
     
  • There could be increase in retirement age.

End-Notes:
  1. https://www.law.ox.ac.uk/sites/files/oxlaw/ak_separation_of_powers_philfounds_book.pdf
  2. https://www.yourarticlelibrary.com/constitution/separation-of-powers-what-is-the-theory-of-separation-of-powers/40336
  3. Re Delhi Laws Act Case AIR 1951 SC 332.
  4. Keshvanand Bharti v State of Kerala AIR 1973 SC 1461.
  5. Indira Gandhi Nehru v. Raj Narain AIR 1975 SC 1590.
  6. https://www.jstor.org/stable/24469690
  7. Constitution of India 1950, art 124(7).
  8. Constitution of India 1950, art 148(4).
  9. Constitution of India 1950, art 319.
  10. https://www.researchgate.net/publication/279340689_Independence_of_judiciary_in_Bangladesh_An overview
  11. https://www.moneycontrol.com/news/india/politics-its-time-to-debate-on-post-retirement-sinecures-for-judges-5045981.html
  12. Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549.

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