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Rtd. Judges & Executive Posts

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April 23, 2020

What is the issue?

  • Many judges over the years have begun to accept posts offered by the government.
  • Due to this, the clear demarcation between the judiciary and executive has been blurred.

How does the Constitution secure judges’ independence?

  • Chapter 4 of Part V of the Constitution deals with the Supreme Court.
  • Chapter 5 of Part VI of the Constitution deals with the High Courts.
  • The salaries of judges and their age of retirement are guaranteed in order to secure their independence.
  • The judges cannot be easily removed except by way of impeachment under Articles 124(4) and 217(1)(b).
  • They have the power to review legislation and strike it down.
  • They also have the power to question the executive acts.
  • Why? - All these make it clear that the framers of the Constitution wanted an unambitious judiciary.

What does the Gogoi example reveal?

  • The President of India nominates the former CJI Ranjan Gogoi to the Rajya Sabha (RS) as a Member of Parliament (MP).
  • During his tenure as CJI, Justice Gogoi presided over important cases and all the decisions went in favour of the government.
  • This gave an impression that his nomination was a reward for these favours.

In what context Gogoi’s appointment should be seen?

  • The desire of a post-retirement job influences pre-retirement judgments.
  • It is a threat to the independence of the Judiciary.
  • It is in this context that the appointment of Mr. Gogoi has to be seen.
  • Article 80 - The President can nominate persons having special knowledge in literature, science, art and social service as Rajya Sabha MP.
  • It is difficult to imagine that the Constitution-makers had in mind a retired CJI while framing this provision.

What is the problem with such appointments?

  • Post-retirement appointments will undermine the constitutional values of impartiality in the dispensation of justice.
  • These appointments will undermine confidence in the judiciary.
  • It will also go against the clear demarcation of separation of powers.
  • It is true that there are no rules that stood in Justice Gogoi’s appointment to the Rajya Sabha.
  • But such matters cannot be left to the individual vagaries of judges.

What could be done?

  • It is time to have a law in place barring post-retirement appointments.
  • This is the only way to secure the confidence of the people.
  • Judges can be compensated by being given their last drawn salary as pension.
  • The age of retirement for judges can be increased by a year or two.

 

Source: The Hindu

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