Ranjan Gogoi was elevated as the Judge of Supreme Court in April, 2012, and he became the Chief Justice of India (‘CJI’) on 3rd October, 2018 till 17th November, 2019. During his tenure as CJI, he delivered judgments after judgments, including CBI Director Alok Verma’s illegal removal, investigation into Rafale, NRC in Assam, Kashmir lockdown, and finally Babri Masjid title dispute — wherein the Supreme Court allowed Government to submit affidavits in ‘sealed cover’, did not scrutinise the government actions effectively, and thus allowed the government to get away with vast number of improper or illegal actions. The refusal of the Court to investigate allegations of gross corruption in Rafale, or to spearhead the NRC mayhem in Assam resulting in the exclusion of 19 lakh Indians, many of whom were poor Muslims who lacked proper documents about their lineage. Lots have been written about the Court’s deliberate inaction in Kashmir petitions, including those of habeas corpus, while few could understand the twisted logic of the Court in admitting that demolition of Babri Masjid was illegal, but decreeing the title dispute in favour of the Ram Janmabhoomi Trust. Besides, the conduct of the then CJI Gogoi in dealing with sexual harassment allegations against himself was beyond belief, and violated every legal procedure in the book.

It must be noted that Ranjan Gogoi is not the first person who has been appointed by the Central Government after his retirement from Supreme Court. The issue of post-retirement appointment of Judges has been plaguing the Judiciary for long, with no solution in sight. Prior instances of Justice Ranganath Mishra and Justice Baharul Islam are being cited by the Government to justify the nomination of Ranjan Gogoi. It is true that Justice Ranganath Mishra who was the Chief Justice of India till November, 1991 was nominated to Rajya Sabha in 1998, i.e., 7 years after demiting office. Of course, the case of Justice Baharul Islam was particularly egregious, with the Judge being a member of Rajya Sabha first (1962-1972), then nominated to Guwahati High Court and retired as the Chief Justice of that High Court (1972 to March, 1980), then elevated to Supreme Court as a Judge, and served for more than two years, prior to resignation (December, 1980 to January, 1983), and was nominated again to Rajya Sabha. Besides these two examples, in last few years, there have been many cases of ‘political appointments’, which have been widely criticised. Months after Justice P. Sathasivam retired as Chief Justice of Supreme Court in 2014, he was appointed as the Governor of Kerala in September, 2014 and completed his five year tenure in 2019.

The moot point is that there exists a limited legal framework governing the post-retirement appointment of Judges. Article 124(7) of the Constitution states that “no person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India”. Similarly, for the High Court judges, Article 220 of the Constitution places restrictions on the permanent judges of the High Court, wherein the said Judges after retirement could only practice in the Supreme Court, or in other High Courts, but not in their parent courts. Thus, the only restriction is that the Supreme Court judges are prohibited from practicising before any court or authority, while the High Court judges are prohibited from practising in the home courts.

However, if one analyses carefully the Article 124(7), the word ‘act’ is separate from ‘plead’, i.e., one could not ‘act’ as a Judge before any court or any authority, after retiring as a Judge of the Supreme Court. Similarly, under Article 220, the word ‘act’ indicates that no permanent Judge of a High Court can plead or act as a Judge in any court or authority in their home courts. In fact, this view was echoed by the First Law Commission of India in its 14th Report submitted in 1958 and stated that “there can be no doubt that it is clearly undesirable that Supreme Court Judges should look forward to other Government employment after their retirement. The Government is a party in a large number of causes in the highest court and the average citizen may well get the impression that a judge who might look forward to being employed by the Government after his retirement, does not bring to bear on his work that detachment of outlook which is expected of a judge in cases in which Government is a party. We are clearly of the view that the practice has a tendency to affect the independence of the judges and should be discontinued.” Accordingly, the Law Commission recommended that similar to the prohibition on further employment of the Comptroller and Auditor General of India (‘CAG’), and the Chairperson of Union Public Service Commission or State Public Service Commissions, there should be a constitutional bar on the employment of Supreme Court Judges, either by the Union or by the States.

However, this recommendation was never accepted by the Government of India, and several legislations were enacted that require Judges to be heading the tribunals/commissions. This is also evident from a study done by Vidhi Centre for Legal Policy in December, 2016, wherein it was found that out of 100 judges retired from the Supreme Court in last few years, over 70 judges accepted post-retirement appointments, particularly as heads of statutory bodies, including tribunals, commissions, etc. In effect, most of the statutory bodies require the judges of either Supreme Court or the High Courts to head them, thereby making it necessary that retired judges are appointed to their autonomous, semi-autonomous or government bodies. Thus, there exists a contradiction between the intent of Article 124(7) and the plethora of legislations mandating appointment of retired judges.

Clearly, there does appear to be a well-thought out logic and public interest in having retired Supreme Court or High Court judges on important commissions like National Human Rights Commission, National Commission for Redressal of Consumer Disputes (‘NCDRC’), etc, but there is also a huge need to strike a balance between needing judicial involvement in statutory bodies, and to preserve the independence of judiciary, and sanctity of the doctrine of separation of powers between Executive and Judiciary. In this regard, the concept of mandatory cooling off period becomes relevant, wherein if the blanket prohibition on post-retirement appointment of judges is impossible, there is a bar of at least five years before a retired Judge could be appointed on any Government body, tribunal or commission. This would ensure that there is no perception of bias or favour towards the Executive, while rendering judicial decisions in the hope of a plum post-retirement post.

In February, 2019, the Modi Government categorically denied any plan to bring in mandatory cooling off period for retired Judges on the specious basis that legislations allow for such appointments. It is very obvious that the present ruling political regime cares too hoots about either separation of powers or independence of judiciary, in fact, since May, 2014, the Modi Government has undertaken a single point agenda of undermining any judicial independence or fairness. The midnight transfer of Justice Muralidhar in February, 2020 in the middle of a crucial hearing of cases relating to Delhi pogrom is testament to this Government’s all-out war on judicial independence and integrity.

Thus, this episode of the nomination of Ranjan Gogoi to Rajya Sabha is a wake-up call to all jurists, lawyers and public spirited citizens in India, and should make us urgently demand an amendment in the Constitution introducing mandatory five years cooling-off period for the appointment of judges after their retirement, and make the necessary changes in all the relevant laws. It is the ‘separation’ of powers between Judiciary and Executive and not ‘cohesion’ between the two that will save this democracy. (IPA Service)