Former CJI’s Ranjan Gogoi’s nomination to Rajya Sabha, four months after his retirement has triggered a controversy. It stems from the key constitutional principle of separation of powers, whereby judiciary, executive and legislature ought to be kept separate. The dictum about Caesar’s wife being above all suspicion applies to this case, as judges having truck with other arms of government barely four months from retirement can lead to suspicion about how independent the judiciary has really been. The government after all is a key litigant in several Supreme Court cases. To avoid conflict of interest, judges must keep their distance from the corridors of powers.

A cooling-off period for judges, for a minimum of two years, if not more, is necessary. Alternatively, the retirement age for judges can be raised to 70 with no more extension allowed thereafter.

Nomination of retired Supreme Court judges to the Rajya Sabha is not a new practice. Retired judges have been appointed to political office since Prime Minister Jawaharlal Nehru’s tenure. In 1952, Justice Fazal Ali was promoted the governor of Orissa, shortly after retiring from Supreme Court. In 1958, Chief Justice M C Chagla resigned from Bombay High Court in order to become India’s Ambassador to the US at Prime Minister Nehru’s invitation. In April 1967, Chief Justice Subba Rao resigned from the Supreme Court to contest election for the President’s post. In 1983, justice Bahrul Islam resigned from the Supreme Court to contest as a Congress(I) candidate for a Lok Sabha seat after ruling in favour of Bihar’s chief minister Jagannath Mishra, in a controversial case where Mishra was accused of criminal wrongdoing and misuse of office. In recent times, Chief Justice Sathasivam was appointed the Governor of Kerala.

In words of India’s first Attorney General, M C Sitalwad, all this raises “a question of constitutional propriety” relating to the independence of judiciary. After all, could the government not use such tactic to reward judges who decide the cases in its favour? Further, if a judge decides highly controversial and contested cases in favour of the government and then accepts a post-retirement job, even if there is no immediate quid pro quo, would this not lead to the public perception that independence of judiciary is compromised?

In its 14th report in 1958, the Law Commission noted that retired Supreme Court judges used to engage in two kinds of work after retirement; firstly “chamber practice” (a term which would today mean giving opinion to clients and serving as arbitrators in private disputes) and secondly “employment in important positions in the government”. The Law Commission frowned upon chamber practice, but did not recommend its abolition. However, it strongly recommended banning post-retirement government employment for Supreme Court Judges because the government was a large litigant in courts. The Commission’s recommendations were never implemented.

In 1970, Hidayatullah was hearing the highly political privy purses case, in which he would deliver his last judgment as CJI. In that case, the Supreme Court held that Indira Gandhi government’s decision to abolish privy purses to former Indian princes (who had decided to join the Indian Union after British left India) was illegal. While hearing was going on, it was reported, that Hidayatullah was being considered by the government for the World Court or for the position of Lok Pal after he retired.

Some lawyers and judges suggested to him that he should not hear the Privy Purses case since he was being considered for a post retirement job. However, Hidayatullah made it very clear that even if he was offered any of these positions, he would not accept them. After cooling-off period, several years after his retirement, he accepted the post of vice-president of India under the Janata government. It is about time that we start expecting the judges of our constitutional courts to follow CJI Hidayatulla’s excellent example. (IPA Service)