Justice must not only be done, but must also be seen to be done.

This maxim was laid down by Lord Hewart in Rex v. Sussex Justices [1], where he went on to held:
Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.

The trend of accepting government jobs after retirement from the post of Supreme Court Judges is contrary to the dictum laid down by Lord Hewart. Such an act raises doubts on the judgments given by the judges during their tenure in favour of the government.

Recently, the independence of judiciary came on the radar with the nomination of retired CJI, Ranjan Gogoi to Rajya Sabha on March 16, 2020, who retired on November 17, 2020. It took him precisely 4 months to become a government servant from a constitutional servant. These appointments blur the lines between executive and judiciary. His appointment makes his tenure controversial because just before retirement he delivered pro-government judgments in key cases like Ayodhya and Rafale.

Constitutional provisions to protect independence of judiciary

Our constitutional makers longed for an independent judiciary, which is uninfluenced by executive. The objective behind such independence was to ensure that all judgments are freely delivered. Therefore, provisions related to appointment, salary, tenure and removal of judges were inserted in the constitution.

Appointment of Supreme Court Judge: The president appoints the Judge on the recommendation of the collegium, which consists of CJI and the four senior most judges of Supreme Court [Article 124(2)]

Tenure:
Judges hold office until he/she attains the age of 65 years [Article 124(2)]
Salary: According to Article 125 the salary of a judge is determined by the parliament as per the law. On the condition that the allowances and privileges of a judge cannot be varied to his/her disadvantage after his/her appointment.

Removal:
A judge can be removed by way of impeachment as per Article 124(4).

Condemnation of post retirement appointments

Judges and Advocates have shown strong condemnation after these appointments.

Justice (retired) Madan B. Lokur spoke about his apprehensions against the nomination, while speaking toIndian Express.There has been speculation for some time now about what honorific would Justice Gogoi get. So, in that sense the nomination is not surprising, but what is surprising is that it came so soon. This redefines the independence, impartiality and integrity of the judiciary. Has the last bastion fallen?[2]

Supreme Court Advocate, Karuna Nundy tweeted,It's just so sad.The brazenness of it. Destroying constitutional propriety for a measly Rajya Sabha seat.

Senior Advocate and Former Union MinisterArun Jaitleyexpressed his dismay in Rajya Sabha,I think, we are going a bit too far now, in every legislation, in creating post-retirement avenues for Judges. Almost everyone, barring a few notable, honourable men, who are an exception, wants a job after retirement. If we (Parliament) don't create it, they themselves create it. The desire of a post-retirement job influences pre-retirement judgments. It is a threat to the independence of the Judiciary and once it influences pre-retirement judgments, it adversely impacts on the functioning of our Judiciary.[3]

Senior Advocate and president of the SCBA, Dushyant Dave, toldthe Wire:This is totally disgusting, a clear reward in quid pro quo. The semblance of independence of the judiciary is totally destroyed.[4]

Precedents
It is unfortunate that there are number of judges who take government jobs immediately after retirement. This trend started soon after independence. S. Fazl Ali was the first Supreme Court Judge who became the governor of Odisha just after a week of his retirement in 1952. In 1958, former CJI of Bombay, M.C. Chagla was appointed India's ambassador to the United States and later on High Commissioner to the U.K.

In 1983, Justice Bahrul Islam became the first Supreme Court judge who was nominated to Rajya Sabha under the prime ministership of Indira Gandhi. Former CJI, Justice Ranaganath Mishra became the member of Rajya Sabha in 1998 on a Congress ticket. Soon after retirement Justice Ranaganath Mishra got honoured with the chairmanship of the NHRC by Narasimha Rao government. Former Supreme Court Judge, Fathima Beevi accepted the post of governor of Tamil Nadu in 1997. Recently, in 2014, Modi led BJP government made ex-CJIP. Sathasivam, the governor of Kerala.

As per the study conducted byVidhi Center for Legal Policy, it was found that 70% of the Supreme Court Judges take up government posts after retirement. And one more study called Jobs for Justices: Corruption in the Supreme Court revealed that the chances of such appointments increases by 15-20% withevery pro-government judgment.[5]

Suggestions
It cannot be argued enough that every governmental appointment of Supreme Court and High Court Judge threatens the independence of judiciary and makes the judgments of appointed judge dubious. As constitutional officers they are expected to maintain the sanctity of their office even post retirement and not to accept government posts. In U.K, there is no law against the non-acceptance of government posts after retirement but there is not a single judge who accepted government appointments or nominations. In India, considering the burgeoning trend towards the post-retirement jobs, we need a constitutional amendment in place.

There are two possible ways to address the situation, either to make a law which bars post retirement appointments or to make such regulations which can ensure that independence of judiciary is not hampered even in absence of such prohibitory law like cooling-off period or increasing the age of retirement.

The Law commission suggested in its 14threport, 1958, the Supreme Court should not be allowed to accept government jobs after retirement. The report mentions:
….judges of the Supreme Court should be barred from accepting any employment under the Union or a state after retirement, other than employment as an ad hoc judge of the Supreme Court under Article 128 of the Constitution.

Former CJI RM Lodha suggested introduction of a cooling-off period for 2 years. Cooling-off period means the time gap between the date of retirement and the date of appointment to a government office. This time gap is to break down any link from the pre-retirement office to post-retirement office. It is indeed a good recommendation but a 2 year cooling-off period is reasonably a less time to break down any previous nexus. This time limit can be increased to 5 years, still these appointments may bring suspicion.

Increasing the age of judges by 2-3 years or until 70 years is another popular recommendation to curb judges from taking post retirement government employment. It is a flawed recommendation because such an increase can exceptionally stop a couple of judges from taking posts, but there is a high likelihood that judges might be interested in accepting such jobs. This solution can be workable only if the age of retirement is increased until death, like USA.

Way Forward
A constitutional amendment or a legislative enactment is required which bars the Supreme Court and the High Court Judge from accepting government job after retirement. Although the future of such a law looks bleak. It is not surprising that every government that came to power offered government office to judges.

Expecting a law in this regard any time soon is a pipe dream.

It is time the Supreme Court takes cognizance of these post retirement appointments to maintain the sanctity of judiciary. The post-retirement governmental jobs taken up by the judges should be challenged on the grounds of interfering with independence of judiciary which is a part of basic structure doctrine. These appointments should be declared void, Supreme Court should lay down suitable guidelines in this regard to fill the constitutional void for the time being.

End-Notes:

1. [1924] 1 KB 256
2. https://indianexpress.com/article/india/ranjan-gogoi-madan-b-lokur-rajya-sabha-6317871/
3. https://www.thehindu.com/opinion/op-ed/pre-retirement-judgments-and-post-retirement-jobs/article31408953.ece
4. https://thewire.in/law/cji-ranjan-gogoi-rajya-sabha-nomination
5. https://theprint.in/opinion/the-honourability-index-a-look-at-supreme-court-judges-who-took-post-retirement-jobs/383450/

Written By: Kritika Jaiman, Symbiosis Law School Pune, B.A LL.B