The article discusses the issue of retired judges accepting government post after retirement. Such appointments have several implications. It undermines confidence in the independence of the judiciary. It also influence pre-retirement judgements delivered by the judges. The article also offers some solutions to this problem.

The provisions in the Constitution to secure the independence of the judiciary

• The Constitution has been conceived to provide a pride of place to the judiciary.
• Constitutional appointees to the Supreme Court have been guaranteed several rights in order to secure their independence.
• Salary: The salaries of judges and their age of retirement are all guaranteed in order to secure their independence.
• Removal: They cannot be easily removed except by way of impeachment under Articles 124(4) and 217(1)(b).
• They have the power to review legislation and strike it down.
• They can also question the acts of the executive.
• All this makes it clear that the framers of the Constitution envisaged an unambitious judiciary for which the only guiding values were the provisions of the Constitution.

Issue of judges accepting post-retirement jobs

• It was thought that on retirement from high constitutional office, a judge would lead a retired life.
• Nobody ever expected them to accept plum posts.
• But the clear demarcation between the judiciary and executive got blurred as many judges over the years began to accept posts offered by the government.
• A few years ago, a former Chief Justice of India (CJI) was made a Governor by the ruling party.
• Now, we have the case of a former CJI, Ranjan Gogoi, being nominated by the President to the Rajya Sabha and taking oath as Member of Parliament.
• Pre-retirement judgements under cloud: During his tenure as CJI, Justice Gogoi presided over important cases such as Ayodhya and Rafale 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’.
• Thus his appointment — and that too within a few months of his retirement — not only raised eyebrows but came in for severe condemnation from varied quarters.
• Loss of confidence: People are fast losing confidence in the so-called independent judiciary.
• In 2013 Arun Jaitley, who was also a senior Advocate, ironically said that legislature was creating post-retirement avenues for Judges in every legislation.
• He also said that post-retirement job influences pre-retirement judgements.
• It is in this context that the appointment of Mr Gogoi has to be perceived.

Did Constitution makers intend to nominate Judges?

• Mr Gogoi’s view that membership of the Rajya Sabha was not a job but a service, and that once the President nominated him the call of duty required him to accept it, only created the impression that the judiciary is pliant.
• A bare reading of Article 80(3) of the Constitution only envisages the President to nominate “persons having special knowledge in literature, science, art and social service” as members to the Rajya Sabha.
• It is difficult to imagine that the Constitution-makers had in mind a retired CJI when framing this provision.

A direct question based on the issue can be asked, like “What are the implications of post-retirement appointments of the judges? Give suggestions to deal with this problem”.  So, take note of the various issues and their solutions discussed here.

Way forward

• If post-retirement appointments are going to undermine confidence in the judiciary and in a constitutional democracy.
• Enact law or amend Constitution: It is time to have a law in place either by way of a constitutional amendment or a parliamentary enactment barring such appointments.
• This is the only way to secure the confidence of the people and prevent post-retirement appointments.
• Increase pension: Judges can be compensated by being given their last drawn salary as a pension.
• Retirement age can be increased: Also, the age of retirement for judges can be increased by a year or two.
• This will undo the damage caused by post-retirement jobs.

Conclusion

The appointments of persons who have held constitutional office will undermine the very constitutional values of impartiality in the dispensation of justice. So, enacting a law to bar such appointments or amendment to the Constitution would be the step in the right direction.

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