The recent nomination of Ex-CJI Ranjan Gogoi to Rajya Sabha has not only questioned the separation of power doctrine but has also brought about the issue of post- judicial appointments. In Rajya Sabha, there have always been mixed nominations wherein twelve MPs are nominated from a ratified category of people who have ‘special knowledge or practical experience in respect of literature, science, art, and social service’.

Separation of power
The basis of the separation between the three govt. organs are called the Doctrine of Separation of power.

This doctrine is very essential because there is the inclination of the use of power and when power is concentrated then there is every likelihood that there is a misuse of power and that by the reason Lord Acton generalized that power tends to corrupt and absolute power corrupt absolutely. So, from the very beginning, the care had been taken and there was the struggle between authority and liberty of the individual. The persons who have authority tries to misuse the power and oppress the people by using the power beyond the authority. And the people have an inclination to resist it.

The French scholar Montesquieu expressed the views there would be nothing like a constitution in a country where the doctrine of separation of power is not accepted.

Additionally, in the case of Rai Sahab Ram Jawaya Kapur v/s state of Punjab, AIR 1955 SC 549- the SC had a very important observation that the Indian constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity. But the functions of different parts or branches of the govt. have been sufficiently differentiated and consequently, it can be very well said that our constitution does not contemplate assumption by one organ or part of the state functions that essentially belong to another.

However, this power has been used very randomly, nominating people from different fields. This raises a question on such nomination. Another important facet of this nomination is the violation of the Separation of Power and Independence of the Judiciary which is the pillars of the Basic Structure Doctrine, propounded by the judiciary. In India, there is no strict doctrine of separation of power. It is always supplemented with doctrines of checks and balances.

However, there is no such flexibility regarding the independence of the judiciary. Separation of power does not entail zero interaction among different organs. The very fact that the executive and judiciary have to interact at some junctures is quite true in the context of India. Various occasions like the appointment of judges where CJI and Law minister play a crucial role despite there being a collegium system, budget, and finance for supreme court reflect the flexibility in the doctrine of separation of power. Interaction among different organs is based on principles and pragmatism.

Moreover, such interactions do not affect the independence and uncontaminated nature of the judiciary unless the judiciary is pressurized in such situations. Beyond this, conventions have also shown that meetings on formal occasions instead of personal meetings are also permissible. The issue of post- judicial appointment also assumes importance in this context. The nomination within barely four months of retirement also raises questions regarding the hurried and immediate appointments.

Generally, a cooling-off period is required for various appointments to administrative bodies so that the possibility of quid pro quo or conflict of interest does not arise. Those officials who hold sensitive posts are generally barred from accepting an appointment for a reasonable period of time which is generally 2 years from their retirement. Such a cooling-off period becomes important for eliminating/mitigating any nexus between the previous incumbency and post-retirement appointment.

However, in such a case, no cooling off period seems to have been given even for a post like CJI which questions the morality of such an appointment. Generally, post-judicial appointments are a manifestation of post-retirement quid pro quo which doubts the judgments rendered in the previous incumbency as the choice of selection for these posts is in the hands of the government.

Thus, in such a scenario, this appointment quashes the very pillars on which our constitutional machinery is standing. Sweeping reforms in the context of post-judicial appointments and stringent law regarding the cooling-off period to avoid suspicion of conflict of interest become needs of the hour. One of the reforms which can be suggested amid such a situation is no role of the executive in the post-judicial appointment. To run the system smoothly and efficiently, the core ideas and principles backing this system have to be protected.