Justice must not only be done, but must also be seen to be done.
This maxim was laid down by Lord Hewart in Rex v. Sussex Justices
, where he
went on to held:
Nothing is to be done which creates even a suspicion that there has been an
improper interference with the course of justice.
The trend of accepting government jobs after retirement from the post of Supreme
Court Judges is contrary to the dictum laid down by Lord Hewart. Such an act
raises doubts on the judgments given by the judges during their tenure in favour
of the government.
Recently, the independence of judiciary came on the radar with the nomination of
retired CJI, Ranjan Gogoi to Rajya Sabha on March 16, 2020, who retired on
November 17, 2020. It took him precisely 4 months to become a government servant
from a constitutional servant. These appointments blur the lines between
executive and judiciary. His appointment makes his tenure controversial because
just before retirement he delivered pro-government judgments in key cases like
Ayodhya and Rafale.
Constitutional provisions to protect independence of judiciary
Our constitutional makers longed for an independent judiciary, which is
uninfluenced by executive. The objective behind such independence was to ensure
that all judgments are freely delivered. Therefore, provisions related to
appointment, salary, tenure and removal of judges were inserted in the
Appointment of Supreme Court Judge: The president appoints the Judge on the
recommendation of the collegium, which consists of CJI and the four senior most
judges of Supreme Court [Article 124(2)]
Judges hold office until he/she attains the age of 65 years [Article
Salary: According to Article 125 the salary of a judge is determined by the
parliament as per the law. On the condition that the allowances and privileges
of a judge cannot be varied to his/her disadvantage after his/her appointment.
A judge can be removed by way of impeachment as per Article 124(4).
Condemnation of post retirement appointments
Judges and Advocates have shown strong condemnation after these appointments.
Justice (retired) Madan B. Lokur spoke about his apprehensions against the
nomination, while speaking toIndian Express.There has been speculation for
some time now about what honorific would Justice Gogoi get. So, in that sense
the nomination is not surprising, but what is surprising is that it came so
soon. This redefines the independence, impartiality and integrity of the
judiciary. Has the last bastion fallen?
Supreme Court Advocate, Karuna Nundy tweeted,It's just so sad.The brazenness
of it. Destroying constitutional propriety for a measly Rajya Sabha seat.
Senior Advocate and Former Union MinisterArun Jaitleyexpressed his dismay in
Rajya Sabha,I think, we are going a bit too far now, in every legislation, in
creating post-retirement avenues for Judges. Almost everyone, barring a few
notable, honourable men, who are an exception, wants a job after retirement. If
we (Parliament) don't create it, they themselves create it. The desire of a
post-retirement job influences pre-retirement judgments. It is a threat to the
independence of the Judiciary and once it influences pre-retirement judgments,
it adversely impacts on the functioning of our Judiciary.
Senior Advocate and president of the SCBA, Dushyant Dave, toldthe Wire:This
is totally disgusting, a clear reward in quid pro quo. The semblance of
independence of the judiciary is totally destroyed.
It is unfortunate that there are number of judges who take government jobs
immediately after retirement. This trend started soon after independence. S.
Fazl Ali was the first Supreme Court Judge who became the governor of Odisha
just after a week of his retirement in 1952. In 1958, former CJI of Bombay, M.C.
Chagla was appointed India's ambassador to the United States and later on High
Commissioner to the U.K.
In 1983, Justice Bahrul Islam became the first Supreme Court judge who was
nominated to Rajya Sabha under the prime ministership of Indira Gandhi. Former
CJI, Justice Ranaganath Mishra became the member of Rajya Sabha in 1998 on a
Congress ticket. Soon after retirement Justice Ranaganath Mishra got honoured
with the chairmanship of the NHRC by Narasimha Rao government. Former Supreme
Court Judge, Fathima Beevi accepted the post of governor of Tamil Nadu in 1997.
Recently, in 2014, Modi led BJP government made ex-CJIP. Sathasivam, the
governor of Kerala.
As per the study conducted byVidhi Center for Legal Policy, it was found that
70% of the Supreme Court Judges take up government posts after retirement. And
one more study called Jobs for Justices: Corruption in the Supreme Court
revealed that the chances of such appointments increases by 15-20% withevery
It cannot be argued enough that every governmental appointment of Supreme Court
and High Court Judge threatens the independence of judiciary and makes the
judgments of appointed judge dubious. As constitutional officers they are
expected to maintain the sanctity of their office even post retirement and not
to accept government posts. In U.K, there is no law against the non-acceptance
of government posts after retirement but there is not a single judge who
accepted government appointments or nominations. In India, considering the
burgeoning trend towards the post-retirement jobs, we need a constitutional
amendment in place.
There are two possible ways to address the situation, either to make a law which
bars post retirement appointments or to make such regulations which can ensure
that independence of judiciary is not hampered even in absence of such
prohibitory law like cooling-off period or increasing the age of retirement.
The Law commission suggested in its 14threport, 1958, the Supreme Court should
not be allowed to accept government jobs after retirement. The report mentions:
�.judges of the Supreme Court should be barred from accepting any employment
under the Union or a state after retirement, other than employment as an ad hoc
judge of the Supreme Court under Article 128 of the Constitution.
Former CJI RM Lodha suggested introduction of a cooling-off period for 2 years.
Cooling-off period means the time gap between the date of retirement and the
date of appointment to a government office. This time gap is to break down any
link from the pre-retirement office to post-retirement office. It is indeed a
good recommendation but a 2 year cooling-off period is reasonably a less time to
break down any previous nexus. This time limit can be increased to 5 years,
still these appointments may bring suspicion.
Increasing the age of judges by 2-3 years or until 70 years is another popular
recommendation to curb judges from taking post retirement government employment.
It is a flawed recommendation because such an increase can exceptionally stop a
couple of judges from taking posts, but there is a high likelihood that judges
might be interested in accepting such jobs. This solution can be workable only
if the age of retirement is increased until death, like USA.
A constitutional amendment or a legislative enactment is required which bars the
Supreme Court and the High Court Judge from accepting government job after
retirement. Although the future of such a law looks bleak. It is not surprising
that every government that came to power offered government office to judges.
Expecting a law in this regard any time soon is a pipe dream.
It is time the Supreme Court takes cognizance of these post retirement
appointments to maintain the sanctity of judiciary. The post-retirement
governmental jobs taken up by the judges should be challenged on the grounds of
interfering with independence of judiciary which is a part of basic structure
doctrine. These appointments should be declared void, Supreme Court should lay
down suitable guidelines in this regard to fill the constitutional void for the
Written By: Kritika Jaiman,
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Symbiosis Law School Pune, B.A LL.B