Judges, Posts after retirement, Congress and BJP regime
Arun Jaitley once said- Judges are influenced by the desire to get a post after retirement
Nitin Gadkari once said – no post should be given for two years after retirement.
Arun Jaitley in October 2012 made the following statement in a seminar organized by the legal cell of BJP when he was then a former Law Minister and a senior leader of the BJP and the Congress-led UPA was in power at the Centre:-
"There are two types of judges in the country. One is those who know the law and the other, those who know the law minister. Now we have created a system in which only the final decision of the judiciary is valid. We are the only country in the world where judges are appointed by judges. The best (lawyers) don't even want to be judges. This is the second challenge. The age of retirement is fixed, yet the judges do not want to retire. The decisions taken before retirement are influenced by the post-retirement job."
In those days the President of BJP was Nitin Gadkari. He also expressed his opinion. Gadkari had said-
"I am of the opinion that after retirement there should be a gap of two years (for new appointment). Otherwise, the government can directly or indirectly influence the courts. In this way, the dream of an independent, impartial judiciary will never become a reality in the country."
A few weeks before these statements of BJP leaders, a decision of the Supreme Court had also come. In this, the Supreme Court had said that only retired or sitting judges of the High Court or Supreme Court should be made the head of the Information Commission across the country. Also, every application coming here should be heard by two people. One of these persons must be a retired or sitting judge or a lawyer with 20 years of experience.
Explain that the information sought under the Right to Information (RTI) comes to the fore only through the Information Commission. In this way this commission has access to the documents of the government. This decision of the Supreme Court was then criticized by many people by saying that it is an employment scheme brought for the judges.
About a year after this decision of the Supreme Court, on 5th September 2013, Arun Jaitley said in the Rajya Sabha. He said:-
"Barring a few exceptions, almost everyone (judge) wants a job after retirement. If we (Parliament) do not arrange for it, they will do it themselves. The desire to hold a post-retirement position influences pre-retirement decisions. This is a threat to the independence of the judiciary."
Justice S.K. Abdul Nazeer (Former Judge, Supreme Court of India) has been appointed as the Governor of Andhra Pradesh. With this, the debate on the credibility and accountability of the judiciary started once again. Despite the fact that this is not the first case of judges being given post-retirement posts. But, what is a bit unexpected is that Justice Nazeer got the post very soon after his retirement. Justice Nazeer has recently rendered a judgment on Demonetization and he was also part of the Ram Mandir Judgment.
The cover photo of this article is the Five judge bench of the judges of Ram Mandir Verdict. The Bench was consisting of 5 Judges, Former CJI Ranjan Gogoi, Former CJI SA Bobde, present CJI DY Chandrachud, Justice Ashok Bhushan and Justice S. Abdul Nazeer. Out of the 5 judges 4 judges have retired. Out of the four retired judges, three have been given post-retirement post.
Immediately after his retirement, Former CJI Ranjan Gogoi was sent to Rajya Sabha (Upper House of the Parliament). Justice Ashok Bhushan has been appointed as Chairman NCLAT and now Justice S. Abdul Nazeer has been appointed Governor of Andhra Pradesh.
There are old examples also. We have brought five old most celebrated examples of such kind of events:-
Justice S. Fazal Ali: Retired on 18 September 1951 and was made the Governor of Odisha on 7 June 1952. He was also the Governor of Assam from 1956 to 1959.
Justice Fathima Beevi: Retired from the Supreme Court on April 29, 1992 and was made the Governor of Tamil Nadu in 1997.
Justice P. Sathasivam retired as the Chief Justice (CJI) of the Supreme Court on 26 April 2014 and was elevated to the office of the Governor of Kerala on 5 September the same year.
Ranjan Gogoi was nominated to the Rajya Sabha in 2020, about four months after he retired as the Chief Justice of the Supreme Court. This was the first instance of sending a retired personality from the judiciary to the Rajya Sabha through nomination. Gogoi was on the bench hearing several matters related to the government including Rafale, Ayodhya, removal of Alok Verma as CBI Director. His decisions came in favor of the government.
Justice Ranganath Mishra: Retired as CJI in 1992. In 1993, he was made the chairman of the National Human Rights Commission in the Narasimha Rao government. Went to Rajya Sabha in 1998 on Congress ticket during Atal government. The Congress was in the opposition then, yet there were allegations that Justice Mishra had been rewarded for his efforts to save senior Congress leaders accused of the Sikh riots through the Ranganath Commission report.
During UPA-I and UPA-II, 14 retired judges were given posts. Whereas, in the first term of the Modi government, this number is said to be about 12.
There is no law regarding fixing a particular "number of days after the retirement of a judge, he should be appointed" but Justice AP Shah, former chairman of the Law Commission, had recommended that judges should take up government posts only after three years of retirement. But, in 2019, the Central Government made it clear in the Parliament that it has no intention of enacting a separate law in this regard. It is clear that there is no end to the questions arising on the accountability and credibility of the judiciary.