Supreme Court Dismisses PIL Seeking 2 Years' Cooling Off Period For Retired Judges' Post-Retirement Appointments

The Supreme Court on Wednesday dismissed a public interest litigation (PIL) petition seeking a ‘cooling off’ period of two years before any retired judge of a constitutional court can accept a post-retirement appointment.

A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing a plea 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 alleged that judges accepting political appointments from the executive after their retirement was a violation of the fundamental rights enshrined under Articles 14, 19, and 21.

Advocate Ahmad Abdi, appearing for the lawyers' body, told the bench today that the practice had to be regulated to prevent a misconception being formed in the minds of the people that a judge accepting any post-retirement sinecure from the government was biased in his decisions during his judicial tenure. On being asked whether the association intended for this prohibition to apply in the case of the appointments of retired judges to tribunals and other posts, Abdi quickly clarified that its plea was restricted only to "political posts that depended on the discretion of the executive". He argued - 

"These kinds of political offers made by the executive are the issue. A lot of sensitive cases come to the courts. After deciding on these sensitive cases, if the judges accept an appointment from the government after their retirement, what impression is created on the public? That is my question. This is pricking our conscience because we face it day in and day out. Everyone is questioning it. We felt compelled to file this PIL because we are also part and parcel of the judiciary in a way. There should be a cooling off period. So many chief justices have said this. Even the law commission..."

"Let the government enact a law then," Justice Kaul sharply retorted, before pointing out that the court could not invoke its Article 32 powers to issue a mandamus to the Parliament to create a new law. The judge also objected to the specific mention of retired Justice S Abdul Nazeer in the petition. He was appointed the governor of Andhra Pradesh, within a month after his retirement, earlier this year. Questioning the 'public interest' of the litigant, Justice Kaul said, "You do not want a particular person to become the governor. That is why you have filed this petition. You have picked up this one case."

Abdi maintained that the objective of the petition was not to pick apart one case, but to have a general set of guidelines for the retired judges of the Supreme Court and the high courts to accept political appointments after leaving their judicial office. The counsel requested the court to issue a direction requiring the government, till the time a law is enacted on this subject, to stipulate the condition of a two-year-long 'cooling off' period for judges accepting post-retirement political appointments.

The bench, however, remained firm in its refusal to entertain the PIL. "Election to Lok Sabha, nomination to Rajya Sabha...All these we cannot get into," Justice Kaul said, before pronouncing the following order -

"The issue of whether a retired judge should accept any office has to be left to the better sense of the judge concerned, or a law has to be enacted, which cannot be a subject matter of this court's directions under Article 32 of the Constitution. Petition dismissed."

Background

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.

Flagging this issue, the Bombay Lawyers Association approached the Supreme Court in a public interest litigation in May. In its petition, besides alleging a violation of the fundamental rights guaranteed under Articles 14, 19, and 21, the lawyers' body also pointed 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 stated: