Mains Article

The Ranjan Gogoi debate Need for a cooling off period [Mains Article]

Justice Ranjan Gogoi, ex-CJI, getting a Rajya Sabha nomination has heated the debate about the cooling-off period for the judges of the higher judiciary before being given executive responsibility after their retirement.
By IT's Mains Articles Team
March 20, 2020

Contents

  • Introduction
  • Article 80(1)(a)
  • Provisions in Constitution
  • Apprehensions regarding the move
  • Concerns
  • Cooling off Period
  • Conclusion

The Ranjan Gogoi debate Need for a cooling off period

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Introduction:

Former Chief Justice of India Ranjan Gogoi’s rushed nomination to the Rajya Sabha has drawn criticism and analysis concerning its timing and has led to many unfavourable inferences, whether justified or otherwise.

Article 80(1)(a):

  • In exercise of the power conferred by Article 80(1)(a) of the Constitution of India, President of India nominated Ranjan Gogoi, former Chief Justice of India to the Rajya Sabha.
  • As per Article 80(1)(a), Rajya Sabha shall consist of twelve members to be nominated by the President in accordance with the provisions of clause (3);
  • Provisions of clause (3): The 12 members to be nominated by the shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely: Literature, science, art and social service.

Provisions in Constitution:

  • Article 50 of the Indian Constitution speaks of the separation of judiciary from the executive.
  • Judges in India do not hold office for life and remain in office until they reach the retirement age — 65 for Supreme Court judges and 62 for high court judges.
  • These judges do not hold their offices at the “pleasure” of the President.
  • They cannot be arbitrarily removed by the government once they are appointed, and can only be impeached by a supermajority of both houses of Parliament “on the ground of proved misbehaviour or incapacity”.
  • Judges, therefore, enjoy security of tenure while holding office, which is essential for maintaining judicial independence.
  • Article 121 says: No discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge.
  • Similarly, once appointed, the judges’ salary and other allowances cannot be altered to their disadvantage.
  • In order to maintain the independence of the judiciary, the salary of judges is charged from the consolidated fund, which is independent of budgetary allocations.
  • The provisions were meant to insulate the judiciary from the influence of the legislature or the government.

Apprehensions regarding the move:

1. Proposal in Constituent Assembly:

  • The Constitution provides that a retired Supreme Court judge cannot “plead or act in any court or before any authority within the territory of India”.
  • In the Constituent Assembly (1946), K T Shah, an economist and advocate, suggested that High court and Supreme Court judges should not take up an executive office with the government, so that no temptation should be available to a judge for greater emoluments, or greater prestige which would in any way affect his independence as a judge.
  • However, this suggestion was rejected by B R Ambedkar.

2. The 14th Law Commission Report:

  • 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” i.e. giving opinions to clients and serving as arbitrators in private disputes.
  • Secondly, “employment in important positions under the government”.
  • The Law Commission frowned upon chamber practice, but did not recommend its abolition.
  • It strongly recommended banning post-retirement government employment for Supreme Court judges because the government was a large litigant in the courts.
  • However, the Commission’s recommendations were never implemented.

Concerns:

  • It is often feared that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position.
  • 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 actual quid pro quo, would this not lead to the public perception that the independence of the judiciary is compromised?

Cooling off Period:

  • The time may have arrived to pass a law prescribing a cooling-off period for judges before they are nominated to another public office including the Rajya Sabha.
  • The cooling-off period will minimise the chances of judgments getting influenced by post-retirement allurements.
  • This cooling-off period can be of six years and no judge should be appointed before completing this period.
  • The period of six years is desirable as the government’s tenure is of five years and after that, it has to face the people to acquire again the power to rule.
  • There is also a need for safeguards and checks on post-retirement arbitrations, which have become the rule rather than the exception.

Conclusion:

The entire edifice of constitutional governance rests on separation of powers. The legislature is where the sovereignty of the people resides; the executive is accountable to the legislature; and the judiciary is the upholder of the Constitution and provides a check against executive excesses, arbitrariness, and unlawful steps. To perform its task, it is needed for the judiciary to remain uncontaminated, independent and fierce to “preserve its moral and institutional leverage”.

[Ref: Indian Express, First Post, The Print]
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