Context: Within five months of his retirement as Chief Justice of India, Justice Ranjan Gogoi has been nominated to the Rajya Sabha by the government. 

Former CJI had presided over politically sensitive cases (Assam NRC, Sabarimala, Ayodhya, Rafale, CBI) in which the government was a party.

This raises the question that, should judges stop accepting post-retirement jobs offered by the government, at least for a few years after retiring.

Consequence of Post-retirement appointments of Judges of Higher Courts

• Post-retirement appointments mean that Judges, during his serving period, can get vulnerable to the ruling dispensation pressures so as to deliver the verdict in government’s favour in a quid-pro-quo arrangement.

• It is often feared that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position.
• It would signal that the judiciary is not independent, but is vulnerable to dictates of the executive
• Deteriorates the Public Perception about the integrity of the Judiciary. 

• The very fact that a judge accepts such an appointment could cast doubt on his judgements. 

Independence of Judiciary

• The authority of the Supreme Court of India can be said to be resting on two things: The cogency of its reasoning, and the integrity of its judges.
• India has adopted the doctrine of Separation of Powers whereby Legialature, elected by people, makes laws; executive who is a part of Legislature (Parliamentary form of government) implements the laws and Judiciary interprets these laws
• The judiciary is the upholder of the Constitution and provides a check against executive excesses, arbitrariness, and unlawful steps.
• Being Guardian of Constitution, the judiciary has to be independent — insulated from pressures and inducements.
• Independence of the Judiciary is ensured by many 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)

Is this the first time that such post-retirement appointment is taking place?

• No, retired judges have been appointed to political office since independence.
• In 1952, Justice Fazl Ali was appointed the Governor of Orissa, shortly after retiring from the Supreme Court.
• In 1958, Chief Justice M C Chagla resigned from the Bombay High Court in order to become India’s Ambassador to the US at Prime Minister Nehru’s invitation.
• In April 1967, Chief Justice Subba Rao resigned from the Supreme Court to contest elections for President.
• Justice Baharul Islam served as Judge of Supreme Court from 4th Dec 1980 to 12th Jan 1983. He contested elections as a Congress party candidate and was elected to the Rajya Sabha from 15th June 1983 to 14th June 1989. He gave a Judgement in the case absolving the then Congress Bihar Chief Minister Jagannath Mishra in the urban cooperative bank scanda
• Ranganath Mishra served as CJI 25 Sep 1990 to 24 Nov 1991. He was first Chairman of the NHRC in 1993 and a member of the Rajya Sabha on a Congress ticket from 1998 to 2004. He was the sole member of the Commission of Inquiry into the 1984 anti-Sikh riots which gave clean chit to Congress Party
• In more recent times, Chief Justice P Sathasivam was appointed the Governor of Kerala.

Should Judges be prohibited from Post-retirement appointment?

• There is no explicit prohibition against judges accepting Rajya Sabha nominations
• In the Constituent Assembly, K T Shah, suggested that High Court and Supreme Court judges should not take up an executive office with the government, “so that no temptation should be available to a judge for greater emoluments, or greater prestige which would in any way affect his independence as a judge”.
• Article 124(7) of the Indian Constitution provides that a retired Supreme Court judge cannot “plead or act in any court or before any authority within the territory of India”. 
• However, this provision only restricts post-retirement appointments in Judiciary itself, but not in posts of president, governor, member of parliament, etc
• In its 14th report in 1958, the Law Commission noted that retired Supreme Court judges used to engage in two kinds of work after retirement:
  • Firstly, “chamber practice” (a term which would, today, mean giving opinions to clients and serving as arbitrators in private disputes) and secondly, “employment in important positions under the government”.
  • The Law Commission frowned upon chamber practice, but did not recommend its abolition.
  • However, it strongly recommended banning post-retirement government employment for Supreme Court judges because the government was a large litigant in the courts.
• The Commission’s recommendations were never implemented.

Challenges in prohibiting the post-retirement appointments:

• It is often thought that the solution to this problem requires explicit prohibition on any post-judicial appointment, including commissions of inquiry. 

• The solution is not that simple; after all, there are many positions that require judges to be appointed.

• Institutions like NHRC, SHRC, NGT, Lokpal often require appointment of Judges of Higher Court. Thus, a blanket prohibition will restrict the working of other important institutions of our Democracy

Way Forward:

• Cooling-off period: Several appointments to administrative bodies require a cooling-off period for individuals so as to eliminate the possibility or suspicion of a conflict of interest or quid pro quo. This cooling-off period must be extended to Indian Judiciary.
• Former CJI R M Lodha recommended a cooling-off period of at least 2 years.
• The 16-point code of conduct for judges also called the “Restatement of Values of Judicial Life” -adopted at a Chief Justices Conference in May 1997- needs to be followed by Judges in letter and spirit