By Sujit Bhar
There is a reason why Supreme Court and High Court judges are appointed by the president, the chief executive of the country. Judges are constitutional appointees, following Article 124, and hence wield authority and power that cannot be easily taken away by the legislature.
The legislature may lay down the law of the land, but the Constitution mandates that the judiciary has the principal role of protecting that rule of law and to ensure supremacy of law. The judiciary is also mandated to safeguard the rights of the individual and, among other things, to ensure that democracy does not give way to the predominance of any individual or group.
This is a critical power balance, carefully scripted into the Constitution of the country, and the responsibilities of the judiciary include maintaining of this balance.
According to Greek philosopher Aristotle, power is a two-way street. “What it lies in our power to do, it lies in our power not to do,” he had said. Balance of power will, therefore, include oversight on the use or misuse of power. The entire issue of the executive-judiciary clash in India can be narrowed down to the purported use or misuse of power. And since those with power have the option of not using it, debate will remain on whether consequent events in the public domain were at all necessary.
Just the other day, the executive’s long hand in the appointment of judges was being examined. This has been agreed upon as undue “influence”, though no methodology exists around the world where judicial appointments are entirely a judicial decision.
Now the attention has moved to whether judges should take up a sinecure of sorts after retirement, offered by the executive/legislature. Technically, when a judge demits office, he/she is within his/her rights to accept such offers. In India, a judge of the Supreme Court retires at 65, an age at which his/her intellectual acumen has peaked. Losing such intellect is a pity, and his/her talents and experience can be used in other fields.
This is a loophole through which the legislature inserts its probe. Senior Advocate Arun Jaitley, had said in parliament on September 5, 2013: “…the desire of a post-retirement job influences pre-retirement judgements. It is a threat to the independence of the judiciary.” This may or may not be true, but this naked charge was placed before the public and now it has come back to haunt Justice Syed Abdul Nazeer, who just retired from the top court bench and was, in 39 days, appointed as the 24th governor of Andhra Pradesh—the third, since the state split in 2014—by President Droupadi Murmu.
The storm of debate arises from the fact that Justice Nazeer was part of the bench that delivered a favourable (to the current dispensation at the centre) judgment on the Ram Mandir-Babri Masjid dispute in 2019. This gubernatorial assignment is seen by the Opposition as a “reward” for that verdict, though Justice Nazeer was involved in several landmark judgments, including a dissenting one in the triple talaq (talaq-e-biddat) case.
As the lone Muslim judge in a multi-faith bench which heard the controversial triple talaq case in 2017, Justice Nazeer and one other judge upheld the validity of the practice of triple talaq based on the fact that it is permissible under Muslim Sharia Law. The majority of the bench (3:2), though, barred the practice.
Before moving further, it needs to be clarified what has happened to the other judges on the Ayodhya judgment bench. The bench comprised Justices Ashok Bhushan, SA Bobde, the then CJI Ranjan Gogoi, DY Chandrachud, and S Abdul Nazeer.
Of them, Justice Gogoi, who retired as the CJI, on November 17, 2019, was, four months later, nominated by the president to be appointed as a member of parliament in the Rajya Sabha. This was not unprecedented. Justice Ranganath Mishra (CJI from 1990 to 1991) was a Rajya Sabha member from the Congress party between 1998 and 2004. Justice Baharul Islam, a Supreme Court judge from 1980 to 1983, also became a Rajya Sabha member in June 1983, five months after his retirement. This, too, was the handiwork of the Congress.
Justice Bobde became the CJI on April 23, 2021, succeeding Justice Gogoi. Despite him being on that bench, he has not held any public office. Instead, he is Chancellor of Maharashtra National Law University, Mumbai, and the Maharashtra National Law University, Nagpur.
He is the sitting chief justice of India, having taken oath as the 50th chief justice of India in November 2022, succeeding Justice UU Lalit. He has a tenure of two years, until November 2024.
He retired as a judge of the Supreme Court in July 2021 and, four months hence, in November 2021, was appointed as the Chairperson of the National Company Law Appellate Tribunal (NCLAT). It has to be made clear here that it has been laid out that the chairperson (of the NCLAT) “shall be a person who is or has been a Judge of the Supreme Court or the Chief Justice of a High Court.” This appointment was cleared by the Appointments Committee of the Cabinet in October 2021.
It has to be noted that he was the lone Muslim face on the Constitution bench that pronounced the unanimous verdict in the Ayodhya Ram Mandir-Babri Masjid dispute. It may be pertinent to also add that one pre-retirement judgment of his included the batch of petitions that had challenged the centre’s 2016 demonetisation policy.
That judgment, it may be recalled, was split 4:1, with Justice BR Gavai having written the majority opinion for himself and for Justice Nazeer, AS Bopanna and V Ramasubramanian, upholding the legality of the 2016 demonetisation. Justice BV Nagarathna, however, was the “dissenter”, so to say. She maintained that though demonetisation was well-intentioned and well thought of, the manner in which it was carried out was improper and unlawful.
The counter arguments seem rock solid. It is imperative for any judiciary to retain and promote its best talent. The waste of such talent and the ocean of experience associated with it will be criminal. The judiciary’s power in this seems limited, with the retirement age set at an unrealistic 65.
Today, when medical science has advanced in leaps and bounds, 60 could possibly depict the new middle-aged. Longevity has not just positively affected the body, it has also induced enhanced life for the intellect as well. It is common to see politicians much above 70 ruling in fine fettle. How, then, are Indian judges expected to wither away at 65?
In the US, judges are appointed for life. Understandably, there is huge legislative and executive influence in the appointment of a US judge, but more often than not, this no-retirement clause changes the judge on appointment. Except for some shameful exceptions, the judiciary in the US is more or less neutral, holding up the power and influence of the Constitution with no fear of retribution or no influence of post-retirement “benefits”.
Even if life appointments seem far-fetched in India, one argument could be effective. This is to increase the retirement age of High Court judges to 70 and of Supreme Court judges to 75, provided they prove to have maintained excellent physical and intellectual health. Any post-75 sinecure should not attract criticism.
The Cooling-off period argument
One argument doing the rounds is of a two-year cooling-off period. This makes little sense. This is not a corporate placement deal, where non-compete clauses in the contracts may have influence. If a person of high intellectual calibre in a top constitutional post has any affinity to any political party or otherwise, no period of cooling off will change his/her spots. Such affinity, if any, would have been developed through years and even decades if belief and trust in an ideology. That does not wash off so easily.
It will also be imperative to include within this argument an enhancement of remuneration, etc. (including medical benefits) of judges. The remuneration and other issues had been enhanced last August, but they were only incremental. A judge has to be satisfied that he and his family are well taken care of after he retires. This will allow him to refuse any carrot that the government may use.
Retirement policies of judges, even post-retirement benefits—such as housing, pension, medical benefits—need a drastic change. The retirement age has to be increased with immediate effect, so that, at that age, the judge will have no excuse to move to another job or set of jobs. His/her post-retirement needs will have to be taken care of and any sinecure, if any, should only come from non-government institutions.
—The author writes on legal, economic and corporate issues, apart from social commentary. He is Executive Editor at India Legal