The Ranjan Gogoi debate: India is not new to post-retirement appointments for judges; what is a cool-off period, why does judiciary need it?
The simple solution to resolve the impending crisis is to enact a law for fixing ‘a period of cooling off’ before a retired judge could take up any responsibility in the government or any other constitutional posts.
Justice Ranjan Gogoi, ex-CJI, getting a Rajya Sabha berth has rekindled the debate about the cooling-off period for the judges of the higher judiciary before being given executive responsibility after their retirement. The primary objection being that it limits access to justice and erodes faith in the judiciary. His is not the first such instance of such a position being accorded to a judge of the Supreme Court.
The Constitution of India incorporates several provisions which ensure the independence of the judiciary. Article 50 of the Indian Constitution speaks of the separation of judiciary from the executive. Article 121 says, ‘no discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge.’ Similarly, once appointed, the judges’ salary and other allowances cannot be altered to their disadvantage. In order to maintain the independence of the judiciary, the salary of judges is charged from the consolidated fund, which is independent of budgetary allocations.
The provisions discussed above were made to insulate the judiciary from the influence of the legislature or the government.
Justice Gogoi’s is not the first appointment to the house of legislature. Justice KS Hedge who resigned from the apex court in 1973, joined Janata Party and was elected to Lok Sabha from Bangalore (South) and served as a Speaker from 1977 to 1980.
In 1970 Justice M Hidayatullah, retired as CJI and in 1979 was chosen as an all-party candidate for the post of Vice-President of India. As the vice-president, he presided over the meetings of Rajya Sabha as the ex-officio chairman. Justice Baharul Islam who retired in January 1983 from apex court was nominated to the house of elders by Indira Gandhi in June, 1983. He was alleged to have given relief to the then Bihar chief minister Jagannath Mishra in the Patna Urban Cooperative Bank scam case. Justice Fathima Beevi, who retired in 1992 from the apex court, was made governor of Tamil Nadu in 1997. In her case, there was enough cooling period before she was anointed on a gubernatorial post.
In 1998, ex-CJI Ranganath Misra as a Congress nominee entered Rajya Sabha but at this time Congress was in the opposition. But there were allegations against him that he gave a clean chit to the Congress party in the 1984 anti-Sikh massacre as he was the sole member of the Justice Ranganath Misra Commission of Inquiry. The other case prior to justice Gogoi’s elevation was that of the ex-CJI P Sathasivam, who was made the governor of Kerala by the NDA government in 2014.
All these appointments prove that Gogoi’s is not an isolated case of people with judicial background occupying non-judicial posts, granted to them by a government that has authoritative power.
The political parties, which got the chance of forming governments at the Centre, had meddled in the issues, which affected the independence of the judiciary. Congress twice had violated ‘the seniority convention’ for the appointment of chief justice of India. In 1973, three seniormost judges of Supreme Court were superseded to appoint justice AN Ray, a junior judge, who was considered to be close to Indira Gandhi. Then again in 1977, Justice HR Khanna, who was seniormost judge, was ignored and Justice MH Beg was elevated to the office of CJI.
In 1973, the Supreme Court in Kesavananda Bharati vs. State of Kerala held ‘independence of judiciary’ as the basic structure of the Constitution. It means independence of the judiciary is so important that even a constitutional amendment cannot undo it. The Bhartiya Jan Sangh in the 1970s criticised the Congress government for eroding the independence of the judiciary.
Whenever BJP was in opposition, it has stood for the independence of the judiciary. While in the opposition, Arun Jaitley in 2012, as the leader of opposition in the Rajya Sabha said, "There are two kinds of judges- those who know the law and those who know the law minister." He emphasised that ‘we are the only country in the world where judges appoint judges. Even though there is a retirement age, judges are not willing to retire. Pre-retirement judgments are influenced by post-retirement jobs.’ He repeated his resolve again in 2012 while presiding over his party’s legal cell. He observed that ‘this clamour for post-retirement jobs is adversely affecting the impartiality of the judiciary of the country and time has come that it should come to an end.’
His government appointed ex-CJI P Sathasivam as governor of Kerala after it came to power in 2014. Similarly, there was no cooling-off period for Justice (retd) Adarsh Goel before he was chosen as the chairman of National Green Tribunal (the same day he stepped down from office on 6 July, 2018.)
Congress leader Kapil Sibal and the rest of the opposition have termed Justice Gogoi's appointment as quid pro quo. Their argument being that he "encouraged sealed cover jurisprudence" and employed "delaying tactics" in hearing habeas corpus petitions following the abrogation of Article 370 in Kashmir.
There were also questions asked about the "opaque functioning" of the collegium system and the seemingly arbitrary manner of allocation of cases to judges. Justice Gogoi did nothing when he himself became the master of the roaster. In addition, there were allegations of sexual harassment against him.
The simple solution to resolve the impending crisis is to enact a law for fixing ‘a period of cooling off’ before a retired judge could take up any responsibility in the government or any other constitutional posts. The cooling-off period will minimise the chances of judgments getting influenced by post-retirement allurements.
This cooling-off period can be of six years and no judge should be appointed before completing this period. The period of six years is desirable as the government’s tenure is of five years and after that, it has to face the people to acquire again the power to rule. This would ensure that no judge has any expectations from the powers that be. Since the government is the largest litigant, there is always a possibility that a judge may think of favouring the incumbent government in the hope of getting some post-retirement benefits. The period of six years is long enough to kill any ill-intentioned aspirations of the judge for post-retirement posts.
There have been proposals from the leaders, who are at the helm of affairs in the present government. Nitin Gadkari, who is now Union minister in the Narendra Modi-led government, in 2012, while he was BJP’s national president, proposed in a party’s meeting that a two-year wait should be there before any judge is appointed to commissions or tribunals. He stated in the meeting ‘that for two years after retirement, there should be a gap because otherwise, the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise.’
Amendments must be made to those statutes, which provide that certain commissions and tribunals be chaired by retired judges. For instance, an amendment can be made in National Human Rights Commission Act to provide that a retired CJI or judge of Supreme Court may be appointed as NHRC chairman, provided that there should be a gap of six years between his retirement and the new assignment.
When under Article 124(7), the judge of the Supreme Court cannot practice in any court within the territory of India, therefore, the restriction of six years for assuming new responsibilities in non-judicial areas may be a valid limitation.
Sarvesh is an Assistant Professor of Sociology, Advanced Centre for Women’s Studies, Aligarh Muslim University. Gandhi is an Assistant Professor of Law at Unity PG Degree and Law College, Lucknow.
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