It is being perceived over the years that appointments in the judiciary have seemed to be influenced by political preferences normally across the world and more particularly in UK, USA, Australia and India.

Reforms are also being made or advocated to ensure that meritorious candidates from diverse backgrounds are appointed without any kind of executive influence so that people’s confidence in the judiciary remains intact. But governments in power explore all likelihoods to have some control in the judiciary through judicial appointments and explore ways to influence judges.

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Post-retirement assignments are another mechanism conceived and excessively used by successive governments. The recent appointment of Justice Abdul Nazeer as the Governor of Andhra Pradesh has once again sparked a debate on the legitimacy of post-retirement appointment of judges’ vis-à-vis judicial independence.

There are two broad categories of post-retirement assignments offered to judges of the Supreme Court (SC) and High Courts (HC). The first is where judges are offered statutory posts which require a retired judge of the SC or HC as its chairperson or member such as National Human Rights Commission, Law Commission of India etc. Similarly, there are various tribunals which requires a retired SC/HC judge viz. Green Tribunal, National Company Law Appellate Tribunal, etc. Besides, there are government positions like that of Lokpal/Lokayukta, ad hoc committees and inquiry committees where the government employs judges of the SC/HC. Judges have also been appointed as Indian Ambassadors and Vice-Chancellors of various Universities.

The second category is more of political appointments. Judges after retirement or resignation, due to their political leanings, have joined politics, contested elections on party ticket or worked with the government. This tradition was started when Justice Fazl Ali was appointed the Governor of Orissa in 1952, shortly after retiring from the Supreme Court. Justice H R Khanna and Justice V R Krishna Iyer contested Presidential elections as the opposition candidate. Justice Khanna had also accepted a Cabinet birth in Chaudhary Charan Singh’s government and became the Law Minister.

Justice K S Hegde, who resigned in protest after supersession of three senior most judges of the Supreme Court after the Kesavananda Bharti Judgement contested the Lok Sabha election in 1977 from Bangalore on a Janata Party ticket and later became Speaker of Lok Sabha. Justice MC Chagla was also inducted as a member of the Union Council of Ministers and served the country as minster for education. Justice Baharul Islam and Justice Rangnath Mishra were offered seats in the Rajya Sabha by then Congress government. Similarly, Justice M H Beg’s loyalty to the Congress party made him worthy for directorship of a Congress owned enterprise, National Herald. Justice Fatima Beevi, the first woman and Muslim judge in the SC was appointed the Governor of Tamil Nadu in 1997 and Justice M Rama Jois after demitting office joined the Bhartiya Janta Party and was appointed as the Governor of Jharkhand and Bihar.

The recent post-retirement political appointments which came under criticism were former Chief Justice P Sathasivam’s appointment as Governor of Kerala, Justice Ranjan Gogoi’s nomination to the Rajya Sabha and Justice Abdul Nazeer’s appointment as the Governor of Andhra Pradesh. A survey of cases decided by these three judges supports the allurement apprehension. While Justice Sathashivam quashed an FIR against BJP President Amit Shah in the Tulsiram Prajapathi case, Justice Gogoi led the Benches which decided many politically sensitive cases such as the Ayodhya case, Rafale case, CBI Director Case, Assam NRC issue, Sabarimala case etc. and all as a matter of fact landed in favour of the government.

Justice Nazeer was the lone Muslim judge on the Constitution bench which resolved the Janmabhoomi-Babri Masjid case (2019) and paved the way for the construction of Ram Temple. Justice Nazeer also led the Constitution Bench which recently upheld the Centre’s 2016 demonetisation scheme. It is being contested that these appointments are a signal to other judges who toe the line and get compensated. Every government irrespective of political ideology is keen and content to reward those who help it. Truly speaking, there is no constitutional bar on such appointment, but what is not expressly prohibited by the Constitution does not become permissible ipso facto. Sometimes, we need to go into the scheme of the provision and spirit of the Constitution. Intention of framers of the Constitution appears to be clear ~ to keep a member of the judiciary away from the government. The combined interpretation of Article 50 and 124 (7) of the Constitution is a clear indication in this regard.

The discourse also raises ethical questions. Should a judge accept such assignment after having held a seat of justice? Will it not affect his conduct, attitude, objectivity, and performance if he has a post-retirement benefit dangling before him? Having seen the modus operendi of governments carefully,

I have no doubt that in a number of cases it does. Judges are also human beings, and they don’t come from an ivory tower. They may incline towards government in order to obtain a post-retirement assignment. It prevents judges from expressing their views freely and frankly in the interest of citizens and their rights under the apprehension that their personal interest could be adversely affected.

As far as first category of post-retirement appointments are concerned, there is an urgent need to device some transparent mechanism to select judges for some of these post-retirement engagements. A Collegium-like institution consisting of members of the judiciary, government, opposition and civil society can be created to shortlist the judges for statutory post-retirement assignments. It will not only eliminate the quid pro quo attitude that is presently suspected but also remove the ethical dilemma of the judge and he/she will then not feel indebted to the government for such appointments.

Accepting post-retirement appointments of truly political nature goes against the very spirit of the Constitution. The SC has preached on numerous occasions that justice must not merely be done but it must also be seen to be done.

The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception must be avoided? A judicial code of conduct may be developed where judges of the SC/HC are restricted to take political appointments.

The vital function that judges perform in a democracy makes it imperious that they should be insulated from the other organs of the state. Therefore, there must be a transparent machinery for the selection, promotion and in case of necessity removal of judges.

The importance of judiciary possessing unimpeachable independence has to be emphasized more for a country like India which has constitutionally guaranteed fundamental rights against the mighty state.

As Chief Justice Murray Gleeson of Australia has observed: “The independence and impartiality of the judiciary are not private rights of judges; they are rights of citizens.” Ultimately, judicial legitimacy (and power) rests on public confidence in the courts, in the judges themselves, and in their decisions. The centrality of such confidence to a functioning democratic system has been emphasised at all levels of the judiciary. 

(The writer is Vice-Chancellor, National Law University of Tripura. The views expressed are personal )