Written by Naman Kaushal
Class 12, Vivek High School, Chandigarh
Source: Outlook India
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The doctrine of Separation of Power and Independence of Judiciary are part of the basic structure of the Indian Constitution as held in the landmark judgement of Kesavananda Bharati. Parliament and Judiciary work separately in their own areas but recently, the appointment of former CJI Ranjan Gogoi to the Rajya Sabha has raised concerns regarding the independent working of the judiciary and any undue influence of the parliament on the decision making power of the judges. These events can cause great threat to the Article 50 of the Indian Constitution which states that" the State shall take steps to separate the judiciary from the executive in the public services of the State." The present article seeks to highlight the threat to the Independence of Judiciary in the light of post retirement benefits given to former Judges. The article also examines the previous instances of judges taking such benefits. It concludes with stating the importance of Independent Judiciary and suggesting measures for having an impartial Judiciary.
Independence and Impartiality of Judiciary are inter related with each other. In India Judges are appointed by President of India with consultation with the Chief Justice of India and other senior judges thus forming a collegium model which is being followed after 1998 . In India we follow the theory of Constituent Mechanism which defines Judicial independence in relation to Judges such that a High court judge serves till the age of 62 and the Supreme court judge till 65 years; Judges are given certain perks, allowances and many other benefits by the Government; Also the judicial decisions of judges cannot be discussed in the Parliament and hence there are certain privileges given to the judges under the Theory of Constituent Mechanism to ensure independent and strong judiciary
Overview of Independence of Judiciary
Judges are integral part of society as they set precedents and take suo moto cognizance in various cases such as Human Rights violations or there is a threat to the environment. They play an important role in keeping checks and balances on any unconstitutional activities of the legislature or the executive. However, any undue influence on the judiciary by the parliament can be highly detrimental for the functioning of a democracy. In 1958, The Ministry of Law and Justice, brought out its 14th Law Commission Report under the chairmanship of the first Attorney General of India Shri. M.C. Setalwad, which also stated that it was undesirable for Supreme Court judges to look forward to other government employment after their retirement.
The commission noted that appointment or rejection of appointment of Judges of the High Court as well as Supreme court was done by the executive.
The Law commission in its report also mentioned that it is necessary to increase the pension of Judges of the High Court and Supreme Court in accordance with the pay commission. The report also highlighted that judges were appointed on basis of political, communal and on other grounds which was termed as unsatisfactory appointments as many members of the bar did not had adequate knowledge or experience in the legal field until know.
Understanding the imminent threat to Article 50 of the Constitution
The functioning of Judiciary as an independent organ is being circumvented in the recent times as Judges of Supreme Court and High Court tend to take post retirement benefits like heading non Constitutional bodies like the NHRC whose chairman is a retired High Court or Supreme Court Judge, contesting Lok Sabha elections, nomination to Rajya Sabha. Due to these post retirement benefits given by the ruling government there can be an apprehension of biased or partial decision making by judges which is a serious threat to independence of Judiciary.
In the past seven decades there have been many instances of post retirement benefits given to judges, like the recent appointment of former Chief Justice of India Shri. Ranjan Gogoi who was nominated by the President of India under Article 80(2) to fill the vacancy of Senior Advocate KTS Tulsi. His appointment was questioned as Justice Gogoi was the CJI who headed the landmark Ayodhya verdict and delivered a judgement on an age old dispute. His appointment was criticized by Justice Madan B Lokur who said that "By accepting an offer not commensurate with the dignity of the office held a few months earlier, the former CJI has led many to believe that he has been rewarded by the government, the biggest litigant, for doing their bidding when it mattered.” Justice Gogoi also gave a statement that he is accepting this position because he wants the legislature and judiciary to work together for nation building.
Second person on the list is also a former CJI, P Sathashivam who was appointed as the Governor of Kerala in 2015 by the incumbent NDA government because during his tenure as CJI it was alleged that he had favored the then Party Chief Amit Shah, the current Home Minister of India by quashing the case related to the fake encounter of Tulsi Prajapati  who was an associate of Soharbuddin who was killed in a fake encounter in 2007.
Third person on the list is Justice Bahural Islam who was an advocate and was appointed as a Rajya Sabha MP in 1962. He stayed as MP for about 10 years till 1972 after which he resigned from his post to be appointed as Judge of Guwahati High Court and subsequently he was appointed as Judge of Hon'ble Supreme Court of India. During his tenure at the SC he delivered a judgment absolving then Bihar chief minister Jagannath Mishra from the Congress in the urban cooperative bank case. Eventually, Justice Islam resigned from the Supreme Court to contest elections as a candidate of the Congress Party from the Rajya Sabha.
Fourth person to have taken a post retirement benefit is Justice Rangnath Mishra who has given several landmark Judgments. He was given a Congress Ticket and subsequently became the member of the Rajya Sabha in 1998 on a Congress ticket. He had previously headed the commission which dealt with the inquiry into the riots in the capital following Indira Gandhi’s assassination. The commission had exonerated the Congress party in the 1984 carnage against Sikhs.
Analysis of appointment of judges and Post -Retirement benefits
There is a growing apprehension that ruling parties offer lucrative post retirement benefits to persuade judges to give certain favourable decisions in their favour. Furthermore, Judges appointed through political favouritism tend to favour the ruling party and the plight of the common man is not adhered by the court.
Currently, Judges of the Supreme Court are appointed through the collegium system which consists of five senior judges of the Supreme Court which includes the Chief Justice of India. Earlier, The 99th Amendment Act was passed by the Parliament in 2014 which brought out a new method of appointing Judges through the NJAC [National Judicial Appointment Commission].
It consisted members of Executive branch such as Prime Minister, Union Law Minister, Law Secretary, Chief Minister of concerned state and the Governor which may hinder the Independence of Judiciary as the Government would have the power to favour the appointment of a person as judge of High Court or Supreme Court with they have close connections with instead of a person who is more qualified.
This was the main reason the NJAC [National Judicial Appointment Commission] was repealed by the Supreme Court declaring it as void and unconstitutional being violative of the doctrine of separation of power.
According to Senior Advocate KTS Tulsi, the Bar council should suggest names of judges because they know better about an advocate and its abilities. Mr. Tulsi also remarked the American system of appointment wherein the Judges name is proposed by the Attorney General and he sends the name to the President and who subsequently sends it to the FBI and American Bar association and the Bar association puts 3 ballots as recommended, strongly recommended and not to be appointed.
It is proclaimed that Judges should be of stern stuff and tough fiber, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says "Be you ever so high, the law is above you."
This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivering of social justice to the vulnerable sections of the community.
If the appointment of Judges would be controlled by political parties then the Supreme Court would be ruled by Power and not by Law. Violence would increase in society and members of the ruling party would violate human rights according to their whims and fancies.
In the author’s opinion the basic Doctrine of Separation of Powers will be depleted if judicial appointments are controlled by the Executive branch. It is not necessary that a retired Supreme Judge should be appointed in the Lok Sabha or Rajya Sabha, for this purpose we have the Attorney General of India who has the right to sit in Parliament and help the legislators if any question of law arises but he/she cannot vote in the proceedings of the house. Also it is suggested that Judges should not accept post retirement benefits because it might undermine the Judiciary as a puppet of Legislator and Executive.
The major problem is that if Judges are appointed to Parliament, people will lose faith in the Judicial system of the country and would not approach the court. They might fear that the case would either be dismissed or the person will be acquitted by the court on the basis of "Lack of Evidence"which is a common phrase used for Political Acquittals by the Judges and the plea filed by any person or governmental organization is dismissed.”
It can be said the Doctrine of Separation of Powers will be diluted and the thin line between Judiciary and Executive will diminish. The Executive interference in the working of Judiciary will increase which can be detrimental to the common man’s cause in a democracy.
It is said that if a Judge becomes a member of either House, then the Judge can act violently and in an oppressive manner and tends to know some inside secrets of the Supreme Court which should be disclosed at the Parliament.
Legislators should increase the retirement age of Judges as suggested by the Justice Venkatachaliah commission that for High Court judges to be increased from 62 to 65 years and for Supreme Court judges it should be increased from 65 to 68 years.
Former Solicitor General of India T.R. Andhyarujina commented that countries like the USA do not have retirement age for judges. Many countries like Australia have a retirement age fix at 70 years and Canada at 75 years.  This feature can be adopted in India also.
It is also suggested that there should be a cooling off period for 10 years i.e. 2 Lok Sabha Election wherein if any political party wants any Judge to contest election then it can do so but should not be done within six months or a year after a judge has retired from his post. Immediate appointment tends to raise the eyebrow and leads to suspicion.
Also Article 50 of Indian Constitution should be given a separate status and should be repealed from the DPSP section since it is unenforceable and be given status of Fundamental Right or a separate article so that it is enforceable by law.
If any appointment is done so it has to be done under a neutral transparent public hearing in which judges of the High Court and Supreme court can be questioned for a seat in the Parliament.
Though Indian Judiciary is independent and Impartial in its functions, the question of Post Retirement Benefits of Judges of High Court and Supreme Court should be looked at with urgency.
We need to curtail this practice as it can be detrimental for a democratic regime. Also we as citizens of the country put immense faith in the Judiciary as it is the guardian of our constitution and for this faith to remain intact Judges should not indulge in post retirement benefits to maintain their impartial character.
An Independent and Impartial Judiciary helps in solving cases swiftly and judiciously without any interference from Legislature or Executive. Also it makes sure that Justice is being delivered properly and no one is being deprived of their fundamental Rights.It helps to maintain law and order in the society and ensure there is no case of gross violation of Human Rights. Independence and Impartiality of Judiciary are thus regarded as two requisites for the efficient working of the judiciary. However the indirect influence or considerative given to the judiciary for their services by the executive may lead to several problems and erosion of the Independence of Judiciary.
 Kesavananda Bharati Ors. v. State of Kerala & Anr.., 1973 4 SCC 225 1461.  [In Re: Under Article 143(1) of the Constitution of India vs. Unknown] AIR 1999 SC 1, RLW 1999. (1) SC 168,  Centre for Wildlife and Environmental Litigation Foundation vs Union of India (Original Application No 80/2020)  M.Siddiq (D) Thr. Lrs. vs Mahant Suresh Das, Civil Appeal Nos 10866-10867 of 2010.  Madan B Lokur Judicial Independence: Three Developments that Tell Us Fair is Foul and Foul is Fair March 23,2020, The Wire, https://thewire.in/law/judicial-independence-three-developments-that-tell-us-fair-is-foul-and-foul-is-fair  Amitbhai Anilchandra Shah vs. Cbi & Anr. S.C.C (Cri) :2013 (2) JLJR 477  Sheonandan Paswan vs. State of Bihar. 1988 AIR 414, 1988 SCR (2) 234  Sanjay Suri vs. Delhi Administration 1988 AIR 414; Parmanand Katara vs Union of India & Anr 1989 AIR 2039.  THE CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014 http://www.egazette.nic.in/WriteReadData/2014/162235.pdf  Supreme Court Advocates-on-Record -Association and another vs Union of India.  The Economic Times, Appointment of Judges need more transparency and accountability, KTS Tulsi, https://economictimes.indiatimes.com/opinion/et-commentary/appointment-of-judges-needs-transparency-and-accountability/articleshow/40077828.cms?from=mdr  S.P Gupta v President of India and Ors., AIR 1982 SC 149.  Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation, AIR 2013 SCC (Cri) 552; J. Jayalalitha vs. Union of India, AIR 1999 SCC(670) SCR 653; State vs.Lal Krishna AdwaniI And Others, Criminal Misc/0000334/2017  TR Andhyarujina, Age Of Judicial Reforms, The Hindu, September 1,2012. https://www.thehindu.com/opinion/lead/the-age-of-judicial-reform/article3845041.ece  Rajiv Dhawan, The Revolving Door for Ranjan Gogoi Does the Supreme Court and Parliament No Credit Mar 25,2020, https://thewire.in/law/the-revolving-door-for-ranjan-gogoi-does-the-supreme-court-and-parliament-no-credit Bibliography
Statues and Report
1) The Constitution of India, 1950
2) The Fourteenth Law Commission Report: Reform of Judicial Administration, India,(1958)
3) The Gazette of India, Part II Section 1, Act of Parliament, Dec 31,2014 (India)
4) Justice Venkatachaliah Commission, 2000
1) Kesavananda Bharati Sripadgalvaru v. State of Kerala, (1973) S.C.C 4. 1461(India).
2) In Re: Under Article 143(1) Of The Constitution of India vs. Unknown] AIR 1999 SC 1
3) Centre for Wildlife and Environmental Litigation Foundation vs.Union of India Case No. Original Application No. 73/2020.
4) M Siddiq (D) Thr Lrs vs Mahant Suresh Das ,Civil Appeal Nos 10866-10867 of 2010.
5) Amitbhai Anilchandra Shah vs. Cbi & Anr ,S.C.C (Cri) :2013 (2) JLJR 477.
6) Sheonandan Paswan vs. State of Bihar ,AIR 194, 1983 SCR (2) 61 .
7) Sanjay Suri vs. Delhi Administration ,1988 AIR 414, 1988 SCR (2) 234.
8) Parmanand Katara vs Union of India & Anr, 1989 AIR 2039, 1989 SCR (3) 997.
9) Supreme Court Advocates-on-Record -Association and another vs Union of India, 2016(5) SCC 1.
10) S.P. Gupta vs. President Of India And Ors, AIR 1982 SC 149.
11) Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation, AIR 2013 SCC (Cri) 552
12) J. Jayalalitha vs. Union of India, AIR 1999 SCC(670) SCR 653
13) State vs.Lal Krishna Adwani And Others ,Criminal Misc/0000334/2017
1) Rajiv Dhawan, The Revolving Door for Ranjan Gogoi Does the Supreme Court and Parliament No Credit, Mar252020; https://thewire.in/law/the-revolving-door-for-ranjan-gogoi-does-the-supreme-court-and-parliament-no-credit
2) TR Andhyarujina, Age Of Judicial Reforms,Sept 1 2012. https://www.thehindu.com/opinion/lead/the-age-of-judicial-reform/article3845041.ece
3) Madan B Lokur ,Judicial Independence: Three Developments that Tell Us Fair is Foul and Foul is Fair Mar 23,2020, https://thewire.in/law/judicial-independence-three-developments-that-tell-us-fair-is-foul-and-foul-is-fair