Is judiciary an independent body that works free from the influences of executive and legislative? At least that’s what our constitution provides. Let’s ponder the reality. In this article, we analyse how the independence of the judiciary is getting disturbed by the other forms of government. Concerning the appointment of Rajya Sabha members, Article 80 of the Indian constitution provides for the nomination of 12 members who are specialists in Art, sports, Science etc. by the president. Apart from these 12 members, Rajya Sabha has 245 members (229 representing states, 12 nominated by the president, 4 representing union territories Delhi, Puducherry and Jammu & Kashmir). Further, it is a continuing chamber of the parliament and never be dissolved. So the members of Rajya sabha enjoy office for a term of 6-years fixed by the parliament and one-third of its members retire once in two years.
This year a set of one-third members of Rajya sabha has been retired and a new set of members are being elected. For which, President Ramnath Kovind has nominated former CJI Ranjan Gogoi to be the member of Rajya sabha. Does this nomination affect the independence of judiciary ensured by the Indian constitution?
Judicial Independence guaranteed under the constitution
Indian constitution provides some provisions for safeguarding the interest of judges whereby ensures independent and impartial functioning of the Supreme Court.
· Security of tenure for the supreme court judges ie., they cannot be removed by the president but by a parliamentary procedure only if they are found guilty
· Fixed service conditions – salaries and allowances
· Conduct of judges cannot be discussed in parliament or legislatures
· Importantly Ban on practice after their retirement etc.
This point has been put forth to show that the Indian constitution guarantees independence to the proper functioning of the judiciary without intervention from other forms of government. Among which ban on the practice of judges after their retirement and the issues associated with it has been analysed in detail as follows.
Ban on practice after their retirement
The Supreme Court judges are banned by the constitution to practice privately or to be appointed in a private company after their retirement. This provision is to avoid the judge being biased in providing judgement in a case for a future favour. For eg. A judge being biased to one of the parties of a case to get favour from them in the future. Since their practice after their retirement is banned, they will be paid pension and allowances correctly.
Even this way independence of the judiciary is ensured. But when comes to cases against the government, our constitution does not have any explicit provisions to resist the bias or manipulations happening against judicial independence. This results in the appointment of retired judges in the posts such as governor or the member of Rajya Sabha or other higher posts. This is the issue which paves way for biased functioning of the judicial system and the authorities accompanied within.
Further, this issue is evidential from the recent nomination of former CJI Ranjan Gogoi as the member of Rajya sabha. The notion of the nomination might be good in a way that the parliament will have an eminent jurist to make new rational laws. But this nomination made the country to doubt judicial independence. It gave rise to the question that whether the former CJI has been manipulated for this nomination earlier, thus, in turn, reflected in Ayodhya and Rafael judgment. If this is the case, it is high time for the legislatures to amend the provisions of the constitution to stop this judicial hiring.
Conflict of Interest
Conflict of Interest is an important obstruction for an organization to work efficiently. We could see bureaucrats being appointed in higher government posts, ministries etc. This kind of appointment and promotions indeed has an assertive side but on the other side makes the bureaucrats work biased to the political parties rather doing their best. And also most of the times these appointments are made to favour the ruling government.
For eg., a former bureaucrat Sakthikanta Das has been appointed as RBI governor after the resignation of two RBI governors (Raguram Rajan and Urjit Patel) irrespective of expiration of their term of office due to government’s pressure to release extra funds. Once SakthiKanta Das was appointed, he released the funds. This makes us doubt the government’s intention behind the appointment of bureaucrats. This negatively inspires the bureaucrats to work biased to political parties to get favour in the future.
Politicians find an efficient way to make someone work biased for them by imposing conflict of interest. We could relate more instances like Foreign ministry given to former Bureaucrat Jaishankar Subhramaniam, Governorship of Kerala given to former CJI P. Sadhasivam are some of the incidents we suspect it is a quid pro quo. (favour granted in return of something)
Ranjan Gogoi was once alleged for molesting a woman in the court. That was a fake accusation and that could have been made to threaten him to buy his integrity or to disrespect him. That move was so cheap when comparing to this imposition of conflict of interest. This way judges can be easily hired for the personal favours of government.
Judiciary is the saviour of rights of the citizen and the only system to check the despotism of government. So it should be independent and impartial enough to serve justice to the citizen. I strongly recommend the Parliament to make law and amend the constitution to ensure the independence of the judiciary from the executives whereby it should be mandated that the retired judges must not be appointed in any of the government posts.
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