We, the people of India, having solemnly resolved to constitute India into a
Sovereign Socialist Secular Democratic…
The Preamble to the Constitution of India envisages India to be a Democratic
, consisting of the three most important functionaries of the Government
– The legislature, the Executive and the Judiciary, namely. The organs work
independently and at the same time continue to maintain checks and balances over
Considered to be the Interpreter of the Constitution the Judiciary
plays a significant role in adjudicating disputes between the state and
non-state actors and private individuals. In a country like India, having
world’s lengthiest Constitution, the role of the Judiciary greatly increases to
interpret the Constitution and for resolving any ambiguity that might stem from
the wordings of the Constitution.
The Indian judicial system is a ladder of justice. The Judiciary herein, by the
virtue of Supreme Court and the High Courts has been entrusted with the
important duty of exercising Judicial Review. Any legislation or executive
action held to be arbitrary or unreasonable can be rendered void. The
Constitution of India envisages an Independent judicial System, free from
intervention from the other functionaries. This makes it imperative to maintain
an Independent Judicial System in the Country.
In the words of Austin, The members of the Constituent Assembly envisaged the
judiciary as a bastion of rights and justice. The Assembly has been careful to
keep judiciary out of politics
Even before the Constitution of India came into place, the Members of the
Constituent Assembly advocated for an Independent Judiciary. Sir B. Pocker Sahib
Bahadur, one of the members had stated that the Judiciary should be above all
Political Parties and above all Political Considerations and it is necessary to
establish and maintain an Independent Judiciary in respect to the
Executive. According to SC judgment in Kesavanand Bharati case
of separation of powers and judicial independence are two key facets of the
basic structure of the Constitution which is beyond the scope of the amending
power of Parliament.
The need for an Independent Judiciary is extremely important from the standpoint
of the Public. Any leakage in this regard may cause the general public to lose
faith in the Judicial System of our Nation. An Impartial and Independent
Judiciary is extremely necessary for protecting the rights of the individuals
while upholding equality and drawing a distinction between individual liberty
and social control. Independence of Judiciary shall be construed to mean, not
only the independence of the Judges in terms of dispensing justice but also
independence of the institution as a whole with the absence of any kind of
interference from the Legislature and the Executive.
The Rule of Law can
prevail, only if the Judiciary is Independent. The Independence of the Judiciary
can be assessed by considering factors such as Mode and Mannerism of Appointment
and Removal of Judges; their Tenure; the remuneration, immunities, and
privileges granted to them by their post and other varied aspects.
Considering the importance of an Independent Judiciary, the Supreme Court has
time and again emphasized the need to establish and maintain its Independence.
In the case of SP Gupta v. Union of India
 the manner of appointment of Judges
of the Supreme Court and High Court were being considered. It is in this case
that Article 124 (2) about the appointment of a Supreme Court Judge and Article
217 (1) concerning that of a High Court Judge was brought under the Judicial
The Hon’ble Supreme Court dealt with the role of the Chief Justice of India in
matters relating to the appointment of Judges to the Supreme Court and High
Court and held that Independence of Judiciary is one of the basic features of
the Constitution and the same was to be confined within the four corners of the
Constitution and cannot at any circumstance go beyond that.
It observed that the
used in Article 124(2) and Article 217(1) didn’t correspond
to concurrence and that the Power of the Executive concerning matters relating
to Appointment and Transfer of Judges of the Supreme Court and High Court is
permissible and within the limits of the Judicial independence.
This case is
considered to be a landmark Judgement on the subject of Independence of
Judiciary as it lay down that despite the power relating to Appointment of
Judges is vested with the Executive; the Independence of the Judiciary is a
basic feature of the Constitution.
This decision was soon followed by the Supreme Court's Advocates on Record
Association v. Union of India (1993) (commonly known as the Second Judges
Case), where the Supreme Court after considering the evils of favoritism and
political influence that the Executive might exert on matters associated with
Appointment of Judges overruled the decision of 7-Judge Bench in the case of SP
Gupta v. Union of India.
By, a 9-Judge Bench, the Supreme Court asserted that the opinion of Chief
Justice of India in matters relating to the appointment of Judges of High Court
and Supreme Court should be given utmost importance to prevent the Executive
from exerting their influence on such decision.
This, however, dint restrict the
scope of the Executive in giving suggestions on matters relating to appointments
and in keeping checks and balances over one another. The Supreme Court envisaged
that such a manner of appointment of Judges would reinstate the Independence of
Judiciary from the Executive as provided in Article 50 of the Constitution of
After a period of 6 years, the then of President of India- Mr.KR Narayanan under
the scope of Article 143 of the Constitution, sought for an opinion from the
Supreme Court on matters relating to the appointment of Judges. This came to be
referred to as the Third Judges Case. The Supreme Court deliberated on the
questions that were put forth to them by the President of India and gave a
concurring decision as that of the Second Judges Case.
They upheld the primacy
of the Chief Justice of India in matters ascertaining to the appointment of
Judges and further suggested that the Chief Justice of India had to mandatorily
consult a collegium consisting of four senior-most judges of the Supreme Court
and based on such opinion, appointments were to be made. This was done in order
to keep a check on the Chief Justice of India while making appointments and to
ensure he doesn’t act in an arbitrary and unreasonable manner.
In the year 2014, when the BJP government came into power, they introduced a
National Judicial Appointments Commission Bill of 2014 which advocated for
the establishment of a National Judicial Appointments Commission (NJAC). As the
name suggests, this Commission was formed for making appointments to the post of
High Court and Supreme Court Judges. This Commission led to the 99th Amendment
being passed related to Articles 124(2), 127 & 128 and also inserted Article 124
A, B & C.
The Commission would consist of:
- The Chief Justice of India (Chairperson ex-officio
- 2 senior-most Judges of the Supreme Court (ex-officio members)
- The Union Minister of Law & Justice, and
- Two eminent personalities (nominated by a committee consisting of Prime
Minister, Leader of Opposition and Chief Justice of India).
The role of the NJAC in matters associated to the appointment of Judges was
considered to be against the concept of Judicial Independence as it included
deep-rooted involvement of the Executive in matters concerning the Appointment
of the Judges and this was looked upon as a hindrance in the path of maintaining
the Independence of Judiciary in India. It was further considered to be against
the age-old Collegium system which was involved in matters associated with the
appointment of Judges and was considered to be essential to ensure the proper
functioning of the Judicial System.
The constitutionality of the 99th Amendment as being violative of the Basic
Structure of the Constitution and Independence of Judiciary was challenged in
the case of Supreme Court Advocates-On- Record Association & Anr v. Union Of
[the NJAC case]. It is in this case that the Supreme Court through a
majority ruled out that the domination of the Executive in matters relating to
the appointment of Judges affects the independence of the Judiciary by
compromising on the merit of the Judges and weakens the principle of checks and
balances and the separation of Judiciary from the Executive.
The Court reasoned
that the primacy of the Chief Justice in matters relating to Appointment is
essential to prevent the Legislature and the Executive from exerting political
pressure on matters of Appointment and secure loyalty from the ones appointed
even after their appointment as a quid pro quo service. The Involvement of the
Executive in such allied matters would attack the very fiber of civil society
and act as an obstacle on the way to a democratic nation.
Therefore it was
decided that, while the primacy of the Judiciary on matters relating to
initiation and finalization of the proposal for appointments is indisputable;
the role of Executive could extend only to suggestions and feedback on the
character of the candidates, relating to the appointment of Judges. The
judgment, in this case, was based on the important axiom that the Independence
of the Judiciary is a key element in the entire functioning of the Constitution
and such independence is integrally linked to the appointment of Judges in a
manner which is free from interference by the Executive.
This Judgement not only
upheld the importance of an Independent Judiciary in a Democratic Society with
Rule of Law as the order of the Society but also nullified the 99th
Constitutional Amendment that tried to introduce a Commission in the appointment
of Judges. The involvement of the Law Minister in the Commission was considered
to be an attack on the principle of Separation of Power and an attempt to defeat
the Independence of Judiciary in our Nation.
Thus, over time, significant attempts have been made by the Apex Court in
maintaining and preserving the Independence of Judiciary as elucidated in our
Constitution. The Constitution of India under Article 124(7) and Article 220 has
attempted to ensure the Independence of Judiciary and the Judges by prohibiting
the Judges of the Supreme Court and High Court from practice, post their
retirement. This is done to ensure the sanctity of the institution and promote
In this regard, it is pertinent to take a view of the report laid out by the
first law commission. The First Law Commission in its Fourteenth Report, had
while considering the scope of Post-retirement jobs undertaken by the Judges of
the Supreme Court, unanimously expressed that the practice of Judges looking
forward to or accepting employment under the Government after their retirement
was undesirable as it could affect the independence of the Judiciary and hence a
Constitutional bar should be imposed on the same.
However this hasn’t been taken
into account at all and Judges of the Supreme Court have time and again accepted
employments post their retirements and the instance of Mr. Ranjan Gogoi being
nominated to the Rajya Sabha, four months post his retirement isn’t the very
first instance in India. One can trace such a practice back to the year 1950s,
when the Nehru Government appointed Justice Fazal Ali, who is known for his
dissenting opinion in the landmark judgment of AK Gopalan v. State of
 as the Governor of the State of Orissa, post his retirement.
This was further followed by the appointment of Justice KS Hedge, as the Speaker
of Lok Sabha from the year 1977 to 1980, within a time period of 4 years after
his resignation as Judge of Supreme Court.
The year 1979, witnessed the appointment of Justice M Hidyatullah as the Vice
President of India and the ex-officio Chairman of the Rajya Sabha, within a
period of 9 years post his resignation as the Chief Justice of India. Justice
Baharul Islam who retired in January 1983 from Supreme Court was nominated to
the Rajya Sabha within a few months post his retirement in 1983 itself.
nomination to Rajya Sabha was criticized as a quid pro quo for rendering clean
chit the then Bihar chief minister, Mr. Jagannath Mishra in the Patna Urban
Cooperative Bank scam case. In 1998, the nomination of the then Chief Justice
Ranganath Misra to the Rajya Sabha soon after his retirement was highly talked
about and was looked upon as a reward in return of his loyalty to the Congress
party in giving a clean chit to them in the 1984 anti-Sikh massacre.
the year 2014, the evil of Post-Retirement Job had made its resurgence
when former Chief Justice of India, Mr. Palaniswamy Sathasivam was appointed as
the new Governor of Kerala post his retirement. His appointment was questioned
by the Congress and Mr. Arun Jaitley, had commented on Post-retirement
appointments of the Judges by stating that the post-retirement jobs were
obstacles in the path of establishing an Independent Judiciary.
He further went
on to say that the pre-retirement Judgements were influenced by the desire to
seek for a post-retirement job and the Independence of the Judiciary amidst such
situations can be maintained by providing a cooling period of 2 years post the
retirement of the Judge before any such appointments are made by the Government.
In the case of Rojer Mathew v South Indian Bank & Ors Ltd
., Mr. Arvind Datar,
a Senior Advocate in the Supreme Court had raised an issue regarding the
post-retirement jobs stating that tribunals should not become a haven for
retired persons. He believed that it is important to make an effort such that
the number of retired persons being reappointed is brought down and more persons
from within the tribunal services are appointed up to the highest level in the
tribunal. He further contended that if the administration is involved in making
appointments and judges, serving or newly retired judges, are under
consideration for such posts then the independence of the judiciary is likely to
be compromised and the faith of the Public in the Judicial System be eroded.
Article 80 of the Constitution of India provides for the Composition of the
Council of State also known as the Rajya Sabha. The President under this article
has the power to nominate 12 persons to the Rajya Sabha who are proficient in
the field of Art, Science and Literature and Social Service. Besides the 12
persons nominated by the President under Article 80(3) of the Constitution, the
Rajya Sabha consists of 238 Members who are the representatives of their
respective States and Union Territories. These Representatives are elected by
the Members of the Legislative assembly of that particular State.
Sabha is a permanent body and 1/3rd of its members retire after every 2 years
thereby affixing tenure to be 6 years. The history of the Rajya Sabha can be
traced back to the British rein in India when the Council of State, the Rajya
Sabha was the upper house of the legislature of British India which was
established under the Government of India Act of 1919 through the
Montague-Chelmsford Reforms, which advocated for diarchy in the governance.
The much talked about nomination of former Chief Justice of India in march 2020
to the Rajya Sabha by the President is governed by Article 80(3) of the
Constitution of India as per which the President has the power to nominate
persons who have special knowledge in their respective field of Science, Arts,
Social Service etc., to the Rajya Sabha. The rationale behind such a clause was
to enable the representation of professionals and utilise their services in
proper functioning of the democracy. This mechanism turned out to be of great
usage for those who despite having the capabilities avoid the hassles of seeking
an election for the purpose of representation.
While one group of people
consider such nomination is done to ensure that the knowledge of such an highly
learned man who has been a Judge for 15 years and has been instrumental in
giving path breaking and landmark judgements on the decriminalisation of
homosexuality, the entry of women in Kerala's Sabarimala temple and the Rafale
jet deal along with Assam's National Register of Citizens (NRC); is utilised in
an effective manner for formulating governmental policies and aiding the
Legislature in passing progressive laws, the Opposition has certainly looked
down upon the nomination as an attack on the Independence of the Judiciary and
a threat to the integrity and impartiality of the Judiciary and even ‘quid pro
Thus time and again, the issue relating to appointments being accepted by the
Judges of the Supreme Court post their retirements have arisen and they have
been questioned on lines of such appointments being violative of the
Independence of Judiciary. However there hasn’t been any Judicial Precedent
pertaining to such an issue and ambiguity still lingers.
While one could defend
such appointments as being means to utilize the services of learned
professionals in their designated fields and cater services to the Public, it
cannot be ignored that such appointments tend to influence the pre-retirement
decisions of the Judges and erode the faith of Public in the Judicial System of
the Nation and are barriers to Independence of Judiciary. In such a situation,
the best manner to solve such issues would be to that the Judges keep themselves
politically neutral and don’t indulge in any appeasement policies as a means to
seek post-retirement Jobs.
The suggestion tendered by Mr. Arun Jaitley in
providing a cooling period of two years, post the retirement of the Judge and
before the appointment of the Judge would be a useful mechanism in solving the
necessary evil of appointing Judges to utilise their services. In addition to
this, the Government could promote elevation of members of Tribunal to higher
posts of Chairman and others to prevent such intermingling of Executive and
- (1973)4 S.C.C. 225
- 1981 Supp SCC 87
- (1993) 4 SCC 441
- AIR 1999 SC 1
- 2015 SCC Online SC 964
- AIR 1950 SC 27
- 2019 SCC Online SC 1456