Issue with post retirement appointment of judges

(MainsGS2:Separation of powers between various organs dispute redressal mechanisms and institutions.)

Context:

• Within a month of retiring from the Supreme Court of India, Justice S. Abdul Nazeer has been appointed Governor of Andhra Pradesh.
• Recent other Supreme Court judges who have received a high-profile political appointment soon after retirement were Justice P. Sathasivam (who was appointed Governor of Kerala), and Justice Ranjan P. Gogoi (who was appointed member of the Rajya Sabha).

Pride place to the judiciary:

• The Constitution has been conceived to provide a pride of place to the judiciary as Constitutional appointees to the Supreme Court have been guaranteed several rights in order to secure their independence.
  Chapter 4 of Part V of the Constitution deals with the Supreme Court, and Chapter 5 of Part VI deals with the High Courts.
• The salaries of judges and their age of retirement are all guaranteed in order to secure their independence.
• They cannot be easily removed except by way of impeachment under Articles 124(4) and 217(1)(b) and they have the power to review legislation and strike it down and 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.

Preserve democratic values:

• The larger objective of the executive should be to ensure the independence of the other arms of the governing mechanism, and that democratic values are preserved in all circumstances.
• In 1980, Justice V. D. Tulzapurkar had said that “if judges start sending bouquets or congratulatory letters to a political leader on his political victory, eulogising him on assumption of high office in adulatory terms, the people’s confidence in the judiciary will be shaken.”
• Thus, the Indian judiciary must distinguish between political favours and other post-retirement employment opportunities.

Demarcation of roles:

• There needs to be a demarcation between roles where the presence of a judicial authority is clearly valuable and even necessary, such as in a tribunal or a commission, and where it is not.
• Justice Gogoi, upon his appointment to the Rajya Sabha, had famously proclaimed that he intended to bridge the gap between the judiciary and the legislature, but his attendance record and public participation in parliamentary affairs suggest nothing of the sort.
• Similarly, Justice Sathasivam had said he had wanted to serve the people in his role as Governor, but surely, he could have achieved the same objective through other appointments, that would be more befitting of someone who had held the office of the Chief Justice of India.

Way forward:

• The judges should not take up any appointments upon retirement stemming from political patronage (with the nature of such appointments being clearly defined).
• Additionally, a cooling period of about two years should be considered a mandatory minimum before a judge agrees to take on any post-retirement adjudicatory role, in any case.
• Justice Y.V. Chandrachud had said that the greatest danger to the judiciary lies within. Members of the judiciary cannot compromise judicial independence by trading it for a plum post-retirement sinecure.
• Therefore, appointments of persons who have held constitutional office will undermine the very constitutional values of impartiality in the dispensation of justice.
  It will also go against the clear demarcation of separation of powers.
• If post-retirement appointments are going to undermine confidence in the judiciary and in constitutional democracy, 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.
• Judges can be compensated by being given their last drawn salary as pension and also, the age of retirement for judges can be increased by a year or two to undo the damage caused by post-retirement jobs.
• It is important to remember that judges are constitutional servants, not government servants.

Conclusion:

When one becomes a judge, one signs up to fulfil a promise of ensuring a fair and independent judiciary; this promise cannot be compromised at any cost.
Our judges need to be gently reminded of this unwritten contract they have with the Indian people