“There is a view point that post retirement appointment is itself a scar on the judicial independence of the Judiciary. In fact this is valid and strong point.” – former Chief Justice of India (CJI) Ranjan Gogoi

This was the obiter dicta of former CJI Ranjan Gogoi while hearing 18 petitions related to challenges to the laws governing quasi judicial tribunals. In just a year after making such statement, Ranjan Gogoi has been nominated to Rajya Sabha. This is not first time in the history of Indian courts, that a retired justice has been awarded post-retirement benefits, but as said by Justice Madan Lokur in a recent article, several wrongs of the past do not make this decision right. In the final year of his tenure, Justice Gogoi was involved in many important judgments including the Ram Janmabhoomi Case and the Rafale Deal. For the first time in history, an acting CJI was accused of sexual harassment charges. There are many recent incidents which shake the trust of citizens in the judiciary including choices made in selecting urgent cases amid lockdown and the procrastinating view point of judiciary towards clear violations of fundamentals rights in the state of Jammu and Kashmir. The independence of the judiciary has been challenged again and again in the recent past and this third pillar of the democracy has every time proved to be baffled.

Independence of the Judiciary

The Constitution of India, unlike the USA, does not follow the doctrine of Separation of Powers, but it has been reiterated in many cases that the independence of the judiciary is a basic part of the constitution. For the judiciary to be independent and impartial to serve the constitutional goals, the Judges need to act fairly, reasonably, free of any fear and favor. The judiciary stands between the citizen and the State as a rampart against misuse or abuse of power by the executive. Therefore, it is absolutely essential for the judiciary to be free from executive pressure or influence that has been provided in various provisions of the Constitution.

The independence is not limited only from executive pressure or influence, but also from any other pressure and prejudices. It has many dimensions, fearlessness of other power centres, economic or political. Impartiality, independence, fairness and reasonableness in decision-making are the hallmarks of the judiciary. If “impartiality” is the soul of the judiciary, “independence” is its lifeblood. Without independence, impartiality cannot thrive. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where a judge can work with absolute commitment to the cause of justice and constitutional values. Its existence depends, however, not only on philosophical, ethical or moral aspects but also upon several mundane things namely security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the judiciary) and without (from the executive). Independence of the judiciary is a part of its basic structure. The constitutional ethos of an independent judiciary cannot be permitted to be diluted by acts of implied intervention or undue interference by the executive in the impartial administration of justice, directly or indirectly.

Previous instance of judges being appointed post-retirement

Justice Ranjan Gogoi is not the first Chief justice to accept post retirement benefits from the government. Justice Ranganath Mishra retired as CJI in 1991 was appointed as the Chairman of the National Human Rights Commisssion and later after some years was sent to Rajya Sabha on the Indian National Congress’s ticket. Justice P. Sathasivam was appointed as the governer of Kerala after his retirement in the first regime of the Bharatiya Janata Party (BJP)-led government in 2014. Justice M. C. Chagla, Chief justice of Bombay high court was appointed as Ambassador to the US and then High Commissioner to the UK an then appointed as Minister of Education and subsequently of External Affairs in Nehru’s regime. Justice M. Hidayatullah retired as CJI in 1970 was elected as Vice-President of India. Justice Baharul Islam was Member of Parliament from Rajya Sabha then he became a Judge of the Supreme Court and then again became MP of Rajya Sabha.

Post Retirement Appointments in Other Countries

In the USA, the tenure of judges is lifetime. Therefore no question of post retirement appointments arises. The reason is to provide judges with job security so that they can work according to the law and free from any kind of fear. In the USA, even the president cannot diminish the compensation of the federal judges. This is to exclude executive and legislative interference.

In the United Kingdom, the situation is much like India, but in contrast, there is no law to stop them from assuming any position after completing their services. Many retired judges become crossbench peers. In fact, the current convenor is also a retired Chief Justice of England and Wales.

Suggestions to Maintain Reliability in the Judiciary

A certain cooling off period should be imposed, which needs to be completed before reinstating any public office. It will make sure that there were no political or executive involvements in decision-making of the judge. In my opinion, the cooling off period should be at least 10 years so as to make sure that 2 terms of the Lok Sabha are completed, which will mitigate the chances of external interference.

In India remuneration of judges is far less compared to other countries, this is considered to be a reason that almost all judges after retirement get involved in some kind of activity for financial gain, some in the private sector and some in the public. Increasing the salary and pension of judges may mitigate their involvement in the financial sector, but this is not a reliable solution because greed has no end.

Critical Analysis of Recent Post-Retirement Appointments and Demeaning incidents

Former Chief Justice of India Ranjan Gogoi was nominated to Rajya Sabha after less than 6 months of his retirement. In the last year of his tenure, he was involved in many crucial judgments including the Rafale Deal case, the Ayodhya case and the Assam NRC case, which were directly connected to the then-BJP led government and more importantly all the judgments were ruled in the way that the government wanted. The former CJI P. Sathasivam was appointed as Governor of Kerala within 6 months of the start of his retirement. He was lead of the bench that dismissed the second First Information Report (FIR) against Amit Shah in the fake encounter Sohrabuddin Sheikh case. These appointments totally question the credibility as well as independence of the judiciary. The question remains whether the nomination was made because of his credibility or as a favor that he might have made to the government.

This is not something new and this should not be incorporated into a political party, but there were many such incidents in the past under the government of Congress when Rangnath Mishra and M.C. Chagla did the same thing. That these mistakes were made in the past does not justify these appointments now.

There have been instances in the past where members of parliament go on to become judges.

Due to lockdown, the Supreme Court decided to hear only urgent cases. Amid this catastrophe, where tens of millions of migrant worker were stuck without jobs, money and resources at the place of their work, the government didn’t find the petition filed by Jagdeep Chokkar for the return of stranded workers to their homes urgent. On the other hand, the Supreme Court heard the petition filed by journalist Arnab Goswani, known to be close to the BJP government, for quashing of an FIR’s on the very next day. Is this the justice which the judiciary strives to deliver?

The report of the investigation of a sexual harassment complaint against the CJI was not even made public citing Indra Jaising Vs. Supreme Court. The judgment was delivered by the Hon’ble bench on the basis of a report which was not shown to anyone. It is clear infringement, in my view, of the principle of natural justice that the report on which the allegations were denied was not even shown to the accused.

Internet services were curtailed in state of Jammu and Kashmir for nearly 6 months. The Supreme court procrastinated this matter of utmost importance. Around 12.5 million people were deprived of functional internet for nearly 6 months. They were totally cut-off from the rest of the world.

Conclusion

The Constitution of India provides justice for all. Members of the Judiciary are the administrators of justice. The judges strive to ensure free and impartial administration of justice in order to provide its citizens fairness in application of law. The duty of judges is considered to be very pious, therefore the constitution has provided for independence of judiciary so that they can remain impartial to serve the constitutional goals, act fairly, reasonably, free of any fear or favor. The problem starts when the other organs, i.e. the legislature and the executive start to interfere with them. The external interference not only erodes the piousness of the profession, but curtails individuals of their rights. In the recent past it has been seen that retired judges takes public office within a very short span of time after their retirement. Amazingly, it was found that they were involved in many decisions important to the government in their tenure and more surprisingly they ruled in favor of the government. These early-retirement appointments are a real issue to worry about. The decision of the court of hearing a useless political petition urgently and refusing to consider an urgent petition, involving real problems of needy people is not understandable.

For more on COVID-19, see our special coverage.

Arpit Richhariya is a third year student of Dr. Ram Manohar Lohiya National Law University, Lucknow.

Suggested citation: Arpit Richhariya, Is the Indian Judiciary Independent Anymore?, JURIST – Student Commentary, May 13, 2020, https://www.jurist.org/commentary/2020/05/arpit-richhariya-indian-judiciary-independence/

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org