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Constitutional validity of post-retirement appointments for Judges

The recent nomination of former Chief Justice of India, Justice Ranjan Gogoi to the Rajya Sabha has sparked a fresh debate on two constitutional principles, separation of powers and the independence of judiciary. The critics have been judgmental in saying that this nomination has destroyed the independence of judiciary and has interfered into the independence of judiciary. This will ultimately affect the exercise of the judicial functions and powers. Before we discuss the issue and get the upshot, let’s delve into the constitutional principles and also the nature of judicial powers and functions.

The US Supreme Court in Muskrat v. US1 case held that the ‘primary characteristic of the judicial function is the decision of a dispute actually arising between two parties and brought before the court, which decision must be binding upon the parties and enforceable according to the decision. The Court observed that judicial power is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.’

The Supreme Court of India in Jamaluddin Ahmed Case2 has very clearly held that a judicial decision is made according to rules. A judge attempts to find what is correct solution according to the legal rules and principles. The judge’s approach is objective, guided by the idea of rule of law. On the other hand, an administrative approach is empirical, guided by expediency. The sole task of the judicial function is to find facts and apply law objectively.

This decision of the the Supreme Court of India makes it evident that questioning the approach of the Court in taking decisions is irrelevant as decisions are based on objectivity and are concerned only to find facts in a case. In other words, subjectivity and perception of judges in their individual capacity do not find relevance while taking a decision by the Bench. This is the reason why do we say that a Bench serves as an institution.

After having a brief note on the exercise of judicial powers and functions, now let’s first discuss the principle of separation of powers in the Constitution of India. It is pertinent to note here that India has a parliamentary form of governance as provided under Article 79 of the Constitution. A parliamentary form of governance is created on the principle of ‘fusion of powers’(A phrase coined by Walter Bagehot) which means that the executive shall be responsible to the legislature. Hence, in Clause (3) of Article 75 of the Constitution of India clearly provides that the Council of Ministers shall be collectively responsible to the House of the People. However, India under Article 1 has been established as a Union of States which signifies its federal character. A federation is founded on the principle of separation of powers. Thus, the executive, legislature and the judiciary are completed separated (for example the US polity). The uniqueness of India’s political design is that it enshrines both the principles of fusion and separation of powers, hence the Constitution does not mention either of the two explicitly. Yet, separation of powers between the Executive and the Judiciary finds its mention in Article 50 which says, ‘Separation of judiciary from executive: The State shall take steps to separate the judiciary from the executive in the public services of the state.’ This principle is related to the independence of judiciary and it has been recognised by the Supreme Court of India itself in L. Chandra Kumar case.3 The Court has held that though all judicial powers are vested in the Constitution, the independence of judiciary is well protected on the principle of separation of powers. Moreover, in Kesavanand Bharti case4 the independence of judiciary was included in the Basic Structure of the Constitution. In this backdrop, it would not be justified to say that the principle of independence of judiciary is fragile and could be interfered. The principle of separation of powers also finds its essence in Articles 121 and 122 between the legislature and judiciary. Article 121 provides that 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 expect upon a motion for presenting nan address to the President praying for the removal of the judge as hereinafter provided. On the other hand, Article 122 provides:

Courts not to inquire into proceedings of Parliament (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers CHAPTER III LEGISLATIVE POWERS OF THE PRESIDENT.

All these provisions signify that both the principles of separation of powers and independence of judiciary are well protected by the Constitution and are strongly supported by a number of binding judicial decisions.

Coming to the recent debates over the nomination of Justice Gogoi as Rajya Sabha member, it is to be noted that there is no law or constitutional provision which prohibits such a nomination. The critics have argued that in the 14th Report of the Law Commission in 158, the Commission did not favour post-retirement appointment for judges on government positions. However, it is to be noted here that former Supreme Court Judges are appointed as Chairperson of the Commission itself. Moreover, clause (a) of Section 2 of the protection of Human Rights Act, 1993 also mandates that a Chairperson shall be appointed who has been a Chief Justice of the Supreme Court. These provisions are very clear in their approach that post-retirement appointments are not unconstitutional or against laws. It has also been pointed out that it is an unprecedented decision by the government, however, as it is not an unconstitutional step, it should not be considered unprecedented. Probably, it is criticized considering that it is not a common practice that a government nominates or appoints a former Supreme Court judge or even a High Court judge to some office within months of his or her retirement.

It is also pertinent to note here that this is not the first example when a former judges has been appointed after retirement. Justice K S Hegde who had resigned from the Supreme Court had served as the Speaker of the Lok Sabha from 1977-1980 after he had joined the Janata Party. Further, Justice M Hidayatullah after his retirement as the Chief Justice of India in 1979 was appointed as the Vice-President and in that capacity he had presided over the sittings of the Rajya Sabha. In 1983, Justice Baharul Islam was nominated to the Rajya Sabha after his retirement. Above all, former Chief Justice of India Justice P Sathasivam was made Governor of Kerala in 2014. These examples clearly suggest that the recent nomination of Justice Gogoi is not an isolated case when a former judge has been appointed after retirement.

It is being alleged that the judges probably would take such decisions during their tenure with a view to favouring the government for seeking post-retirement appointments. However, this should not be considered a justified argument mainly because, as said earlier, the judicial functions are based on objectivity and judge’s perception or his subjectivity does not find any place in adjudication. Therefore, it is not justified to allege that the nomination of Justice Gogoi to Rajya Sabha would interfere into the independence of judiciary. On the contrary, the presence of Justice Gogoi as an expert member of the Upper House would contribute to a better exchange of views between the legislature and judiciary.

Another argument may be cited in the context of a proposal by a committee headed by Justice M Jagannath Rao in 2008 on Judicial Impact Assessment (JIA). The concept of JIA signifies that before law making the burden on judiciary both in terms of finance and number of cases should be considered. The Committee had suggested that before the law making the government should have a consultation with the Chairman of the Finance Commission and also with the Chief Justice of India. This recommendation by the Committee may also be taken into consideration that the nomination of former Chief Justice to the Upper House would probably suffice this requirement to a greater extent.

Conclusively, the criticism with the idea that independence of judiciary or separation of powers would be violated or destroyed does not appear to be based on a sound logical footing, rather it appears to have more political in connotation.  


  1. Muskrat v. US (1911) 219 US 346 (356); Commentary on the Constitution of India 9th Edition, Justice S S Subramani, Vol. 9, Lexis Nexis

  2. Jamaluddin Ahmed v. Abu Salem Najmuddin, AIR 2003 SC 1917

  3. Chandra Kumar v. Union of India, AIR 1997 SC 1125

  4. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

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