WHILE nomination of former Chief Justice of India, Ranjan Gogoi to Rajya Sabha just four months after his retirement last year had kicked up a controversy, a recent study has brought out the fact that over 70 per cent of the judges take up jobs and assignments after their retirement.
At the outset it must be noted that there is no law that prohibits any judge from taking any post retirement job. It is more a question of propriety and ethics. While some judges flatly refused to take up any government job after their retirement, some others accept such offers even while they are still in service.
The major cause of concern is a sharp increase in the number of former judges accepting appointments and particularly those where the government makes the appointments directly without consulting or getting recommendations from the Chief Justices.
Justice Gogoi’s nomination to Rajya Sabha had come in for severe criticism due to the fact, which could also be a coincidence, that he had given a string of verdicts favouring the government during the last few months of his tenure as the Chief Justices of India.
These included the Ramjanambhoomi-Babri Masjid case judgment, the Babri Masjid demolition case and the petition seeking an investigation into the purchase of 36 Rafale fighter aircraft.
In his defence he had said that all those judgements were delivered while sitting with other judges and it was “unfair to link” the judgments with his nomination.
He had said that
“Those who are criticising acceptance of nomination as quid pro quo must grant a better sense of proportion to a former CJI. If a former CJI wants quid pro quo, then he could seek bigger, lucrative posts with bigger emoluments and facilities and not a nomination to RS, where the pecuniary benefits are the same as that of a retired judge.”
Most retired judges and lawyers had, however, not appreciated the former Chief Justice of India taking up Rajya Sabha nomination by him. This was the first time ever that a former Chief Justices of India had accepted Rajya Sabha nomination.
While this was the first time for such a nomination, it was not uncommon to find retired judges taking up appointments such as appointments to tribunals, human rights commissions, government-appointed ad hoc commissions, court-appointed committees, water tribunals, and as Lokayuktas or state-level anti-corruption officials.
There are certain posts, like Lokayuktas in states or judicial commissions, where it is mandatory to appoint only retired High Court or Supreme Court judges. The controversial appointments are those which are seen as bestowing favour on judges who are considered compliant.
The first Law Commission of India had, in its 14th report, unanimously recommended that judges should not accept post-retirement jobs from the government, highlighting the potential effect on the independence of the judiciary.
However the recommendation had been flouted more often that being followed. And this has been happening from much earlier than the advent of the present government.
What is disconcerting about the current situation is the blatant favouritism shown for judges who have been giving pro-government verdicts.
Another significant aspect is the current trend of appointing new judges who are known to be the sympathetic to a particular ideology. This can spell disaster in the long run.
It is well known that judges should not only be fair and objective but should also be seen to be above suspicion. It is therefore important that laws should be amended to bring in a clause for a “cooling off period” before retired judges could be appointed to any position.
Most legal luminaries think that a cooling off period of about two years would be good for all concerned including the reputation of the judiciary.
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