Lawyers' Body Moves Supreme Court Seeking 2 Years Cooling Off Period For Retired Judges To Accept Post-Retirement Appointments

The petition has been filed by the Bombay Lawyers Association with the objective of “upholding the independence of the judiciary, the rule of law, and the principles of reasonableness” as well as “to save the democratic principles and the basic aim and object of the Indian Constitution”. The petitioner-association has alleged a violation of the fundamental rights enshrined under Articles 14, 19, and 21, besides pointing out that the powers of the superior courts under Articles 32 and 226 to issue writs – to shield the intended beneficiaries of the provisions laying down fundamental rights from any infringement – have been consecrated as a part of the basic structure of the Constitution itself. The petition states:

“Under Articles 32 and 226, the Supreme Court and the high courts enforce fundamental rights of the citizens as enshrined in Part III of the Constitution of India. Being foundations of the democratic edifice of Indian society, both these articles have been declared by the apex court as part of the basic structure of the Constitution of India. Unless these constitutional courts are perceived by the citizenry as independent and impartial, and free from any kind of influence of the executive and any other form of economic, political and social considerations, the enforcement of fundamental rights would remain dead letters.”

The petitioner has also adverted to the recent appointment of former Supreme Court judge S Abdul Nazeer as Andhra Pradesh’s governor. It is evident, the petitioner has claimed, from the actions of the executive that the executive was not likely to bring any law prescribing a cooling off period for retired judges of constitutional courts before which they would be barred from accepting political appointments. The example of former Chief Justice of India Mohammad Hidayatullah is ‘worth emulating’, the petitioner has said in this connection. Justice Hidayatullah, it has been pointed out, refused to accept any political appointment immediately after his retirement and only went on to become the vice-president (and later, the acting president) nine years after his tenure as the chief justice ended. The petition states:

“An independent judiciary is responsible for upholding the rule of law which is considered as a prerequisite for a democratic form of government. That is why the independence of the judiciary has been declared as part of the basic structure of the Constitution. Hence, the acceptance of political appointments by judges of the Supreme Court and the high court after retirement without any cooling off period is adversely affecting public perception about the independence of the judiciary… The objective of the separation of power appears to be defeated if judges of constitutional courts accept political appointment just after their retirement”.

The petitioner has accepted that there may not be any actual quid pro quo between the judge receiving a post-retirement political position and the executive, but nevertheless, it erodes the public confidence in the independence of the judiciary. In this respect, the petition states:

“The post-retirement appointment of judges may threaten or undermine judicial independence. This is because some judges are offered post-retirement employment by the government. It is often feared that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position. If a judge decides highly controversial and contested cases in favour of the government and then accepts a post-retirement job, even if there is no actual quid pro quo, would this not lead to the public perception that the independence of the judiciary is compromised.”

The petitioners have sought a declaration that it would be desirable – for the protection of the public perception about the independence of the judiciary – that there should be a two-year-long cooling-off period after retirement after which former judges of Supreme Court and high courts may accept political appointments from the government. As an interim measure during the pendency of the petition, the lawyers’ collective has also asked the top court to ‘request’ retiring judges to not accept any political appointment voluntarily for a period of two years.

Earlier this year, retired Supreme Court judge S Abdul Nazeer was appointed the governor of Andhra Pradesh, within a month after his retirement. This led to the revival of the debate over post-retirement positions stepping from political patronage and whether it had an impact on the independence of the concerned judge as well as the institution as a whole. What fuelled this debate, in particular, was Justice Nazeer’s membership of the benches that delivered two crucial, yet controversial constitution bench judgements in the Babri Masjid-Ram Janmabhoomi dispute and the challenge against the 2016 demonetisation of high-value banknotes by the central government. Since 2014, Justice Nazeer is the third such judge who, after retiring from the top court, received a high-profile appointment. Former chief justices P Sathasivam and Ranjan Gogoi both accepted such appointments – with the former being appointed as the governor of Kerala within five months of demitting office, while the latter was appointed as a member of the Rajya Sabha exactly four months after he retired from the Supreme Court.

Case Details

Bombay Lawyers Association v. Union of India | Writ Petition (Civil) No. ____ of 2023