September 29, 2020
The
present issue goes to the root of the independence of the Judiciarythough the
Indian Constitution provides the ‘Separation
of Powers’ still attempts have been made by the executive to influence the Judiciary,
by offering post-retirement engagements to the Judges. The main objective of
this blog is to provide a holistic analysis as to how the re-employment of
theretired Judges to the Statutory, Constitutional and Government Jobs are
violative of Article 124 (7).
ANALYSIS OF ARTICLE 124 (7)
Article
124 (7) of the Indian Constitution states “No
person who has held the office of a Judge of the Supreme Court shall plead or
act in any court or before any authority within the territory of India”.
In
order to decide whether these post-retirement jobs are violative of Article 124
(7), it is pertinent to examine what is the meaning and purport of the
expressions “plead oract” and “authority” occurring in Article 124 (7) of the
Indian Constitution.
The
articulation 'authority' according to Black’s
Law is wide enough to incorporate each authority made by a statute and
working within the territory of India, or under the control of the Government
of India undoubtedly makes Parliament an authorityand the meaning of the word
‘act’ as given in Black’s Law, which
reads, “performance, exercise of power, exercise of individual’s power and something
done by an individual as a Legislator”. In this light duties imposed
specifically on the Members of Parliament to render service in the Parliament,
and rendering service amounts to acting in or before the Parliament.
When
a retired Judge is appointed as the member of the Tribunal or a member of any
Commissionit can be said that such appointment tends to place the Judges in a
position where the Executive or Legislature may have authority over theme.g.
Section 5 (1) of the National Green Tribunal Act states “A person shall not be qualified for appointment as the Chairperson or
Judicial Member unless he is, or has been, a Judge of the Supreme Court of
India or Chief Justice of a High Court”.
Now
it is the discretion of the Executive to appoint any retired Judge of the
Supreme Court or retired Chief Justice of a High Court as the chairperson in
altogether it can be said the Executive is free to do ‘cherry-picking’ and
obviously, the one who’s Judgmentsappears to be favouring the Central
Government will get the job e.g. the recent nomination of Justice Rajan Gogoi
to the post of Rajya Sabha can be said as a reward to those pre-retirement
which appeared to be ruled in the favour of Central Government e.g. Ayodhya
Verdict (M. Siddiq (D) through Lrs v.
Mahant Suresh Das and Others)[1]and
Rafael Verdict (Yashwant Sinha and Others
v. Central Bureau of Investigation)[2].
This
particular nomination becomes more interesting because he himself once stated
that “Firm viewpoints are there that why these Post-Retirement jobs are a scar
on the independence of the Judiciary”.Then what is the
reason for him to accept this job? In an interview, he stated that “this post is not a job but a duty for him and once President nominated
him, it was a call of duty for him to accept this post”.The
author is of the firm opinion that such nomination cannot be said as a
discharge of debt towards the nation.
The
founding fathers of our Constitution being conscious of such enactments
incorporated Article 124 (7) creating a bar for the retired Judges of the Supreme
Court to become Members of the Parliament as it was highlighted by Dr. Ambedkar
that “in India, Judges are intended to be non-political and free from political
pressure”. It is submitted that what is intended by Article 124 (7) is to
insulate Judge against political pressure, political/Executive influence,
allurement, and temptation and to remain above reproach. It also aims at
checking the internal corrosion of Judiciary.
Therefore
the author is of the firm opinion that these post-retirement jobs for the
Judges are an indirect interference by the Executive in the independence of
Judiciary and has a great tendency to undermine this
noble concept.
Revisiting
the Judgment of Ananga Udaya Singh Deo v. Ranga Nath Mishra and Others
The
Orissa High Court once had an opportunity to interpret Article 124 (7) the
author shall provide his reasoning that why this judgment needs to be
revisited. In the case of Ananga Udaya
Singh Deo v. Ranga Nath Mishra and Others[3]the
acceptance of the nomination of a retired Judge of the Supreme Court as a
Member of Parliament was challenged on the grounds that such nomination or
appointment is ultra vires to the
Constitution under Article 124 (7).
The
Court, in this case, rejected this contention and held that the “asseveration "plead or act" used
in Article 124(7) can only be explicated to be a bar for practice before any
authority and it does not refer to the functioning or performance of a Member
of the House of People or Council of States, i.e. Parliament[4].
The court in further held that the phrase ‘plead or act’ should be given
the same meaning which is given under Article 220 which states “Restriction on
practice after being a permanent Judge, the word ‘act’ or ‘plead’ must be
construed in that context i.e. restriction on practice”
The
author finds it difficult to agree with this particular reasoning of the court
because it does not bring out the real intention of the Legislature. The very
intention of the Legislature was to keep the Judges away from any ‘temptation’ and
these post-retirement engagements on prima
facie acts as a temptation.
The
word ‘authority’ under Article 124 (7) has to be given the same effect which is
given to the phrase “other authority” under
Article 12 of the Indian Constitution. Article
12 of the Constitution defines 'State' which includes the Parliament and other
authorities.[5]
InRajasthan State Electricity Board v. Mohan
Lal[6]the
court regarding the meaning of ‘other authorities’ held that"The significance of the word
'authority' given in Webster's Third New International Dictionary, which can be
material is a public authoritative office or corporation having
quasi-governmental powers and approved to administer a revenue-delivering
public enterprise”. This dictionary meaning of the word ‘authority’ is
quite clearly wide enough to include all bodies created by a Statute on which
powers are conferred to carry out governmental or quasi-governmental functions.
The expression ‘other authorities’ is wide enough to include within it every
authority created by a Statute and functioning within the territory of India,
or under the control of the Government of India.
The
Deliberate use of the expression ‘the State’ in Article 12 and also in Article
36would have normally shown that this expression was used to denote the State
in its ordinary and Constitutional sense of an independent or sovereign State
and the inclusive clause in Article 12 would have extended this meaning to
include within its scope whatever has been expressly set out in Article 12.
The
definition of ‘other authorities’ under
the expression 'the State' under Article 12 is, however, for the purpose of
parts III and IV of the Constitution, the contents of these two parts clearly
show that the expression 'the State' in Article 12 and also under Article 36 is
not confined to its ordinary and Constitutional sense as extended by the
inclusive portion of Article 12 but is used in the concept of the State in
relation to the Fundamental Rights guaranteed under Part III of the
Constitution and the Directive Principles of State Policy under Part IV of the
Constitution whose principles are declared by Article 37 to be fundamental to
the governance of the country and enjoins upon the State to apply in making
laws. And under Article 50 it is the duty of the ‘State’ to separate the
Judiciary from the Executive. Therefore according to the author the Upper House
is an authority under Article 124(7) is a positive bar for the retired Judges
to accept such posts where the Executive has direct control over such
authority.
Though
it is a sound rule of construction to give the same meaning to the same word
occurring in different parts of an Act of Parliament, unless the words have
been used in a different context or in a different sensethe interpretation of
the phrase “plead or act” under Article 124 (7) is not limited to restriction
in practice butis of much wider connotation, by taking into the account the
intention of the framers of our Constitution it can be easily inferred that the
framers of our Constitution intended that the Judges of the superior Judiciary
should not be re-employed after their retirement.
Constituent
Assembly Debates
During
the meeting of the Constituent Assembly, a motion was proposed by Professor KT Shah which, if adopted,
would have prohibited Judges of the Supreme Court or any High Court, who had
served for five consecutive years on the bench, to be appointed to any Executive
office, including the office of an ambassador, a minister, a plenipotentiary or
a high commissioner, as well as a minister of India or under the government of
the Union or a State.
This motion was even backed by Professor
Shibban Lal Saksena, who explained the need for such a prohibition thus: “If the temptation of being appointed to other high positions after
retirement is not removed, it will also be liable to be abused by the Executive
or by any party in power and they may hold out such temptations which might
affect the independence of the Judiciary. I personally feel that the amendment
is very salutary and healthy……… I hope that somewhere in our Constitution the
principle enunciated here will be embodied so that the Judiciary may be above
temptation and nobody may be able to influence it”.
The
fourteenth Law Commission Report which was led by Mr. Setalvad advocated that Judges
should not shoulder the Post-Retirement jobs from the Government. Eloquently, several
Judges of the Apex Court have in past averred not to take any Post-Retirement
jobs, including Justice Jasti Chelameshwar, Justice JS Khehar, Justice Kurien
Joseph, Justice RM Lodha and Justice SH Kapadia even Justice Gogoi himself
stated that there are “Firm viewpoints
are there that why Post-Retirement jobs are a scar on the independence of the Judiciary”then
what was the reason from him to accept this nomination?
Post-Retirement Jobs
for the Judges: An “office under Government”
An uncovered perusing of Article 80(3) of the
Indian Constitution only envisages the President to nominate “persons having
special knowledge… in the field of literature, science, art and social service”
as members to the Rajya Sabha. It is difficult to envision that the drafters of
the Constitution had in mind a retired CJI while framing this particular
provision.
The power of President under Article 80(3) is
not discretionary the President has to act under the aid and advice of Council
of Ministers i.e. under Article 74(1) therefore it can be said that such
appointments are made solely by the Executive e.g. in India all the Statutory
posts are filled by the appointments made by the Executive so when a retired
Judge is appointed to such posts then such appointment becomes an Executive
appointment indirectly such appointments can also be called as “office under Government”
The
author would like to like to lay down certain tests which could make such
appointments as an “office under Government”(a) whether Government makes the
appointment to the office, (b) whether Government has the right
to remove or dismiss the holder of the office, (c) whether Government
pays the remuneration, (d) What are the functions which the
holder of the office performs and does he perform them for the Government; and (5) and
does Government exercise any control over the performance of those functions.
Where
the power to appoint, the power to dismiss, the power to control and give
directions as to how the duties of the office are to be performed and the power
to determine the question of remuneration are all present in a given case, then
the officer in question holds that office under the authority so empowered[7]. Therefore
the author is of the firm opinion that these post-retirement engagements are “office under Government”.
CONCLUSION
In
India though the Judges of the Supreme Court and the High Courts are appointed
by the Government, still this appointment does not make them “government
servants”, but by accepting these post-retirement jobs Judges are becoming
“government servants”. The appointment of a Judge is not akin to the
appointment of a Civil servant. Like the more felicitous practitioners in some
profession “He owns no man master”. “The only servitude which he knows in his
solemn capacity is that which he owes to the existing body of legal doctrine,
promulgated by his brethren, past and present, on the bench and the legislative
enactments of the King in Parliament”[8].
These
post-retirement jobs appears to guide or influence the Judges and it is an
indispensable principle of an independent Judiciary that a Judge should be
guided or influenced by nobody but his own conscience. He should imbibe a habit
of independent thinking and uprightness. His motto should be “Fiat Justitia Ruat Caelum- Le Justice be
done even if the heavens fall”. Therefore the author is of the firm opinion
that these post-retirement jobs are violative of Article 124 (7).
[1](2020) 1 SCC 1.
[2](2020) 2 SCC 338.
[3] AIR 2001 Ori 24.
[4]Id.
[5] Central Inland
Water Transport Corporation Ltd. v. BrojoNath, (1986) 3 SCC 156.
[6]AIR 1967 SC 1857.
[7]Guru Gobinda Basu v. Shankari
Prasad Ghosal, AIR 1964 SC 254.
[8]William A
Robson, Justice and Administrative Law 44 (3rd ed. 1933)
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