Two recent appointments are under debate. Advocate L. Victoria Gowri has been appointed as judge in the Madras High Court and retired Supreme Court justice S. Abdul Nazeer has been appointed as the Governor of Andhra Pradesh.
The points of contention in Advocate Gowri’s case were that she was associated with the BJP and that she had posted something on social media which was inflammatory and communal.
Whereas Justice Nazeer becoming a Governor was objected on the grounds that he retired only recently — 4 January 2023. He was on the five-judge bench of the Supreme Court that heard the Ramjanmabhoomi-Babri Masjid case which unanimously ruled in favour of the Hindu side.
Close to his retirement, a constitution bench led by him dismissed the petition challenging the Union government’s decision to implement demonetisation in 2016. His appointment as a Governor was criticised on the grounds that it was some sort of quid pro quo.
There are two generalised arguments in both cases.
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Lawyers affiliated with political parties and expressing their political views should not be made judges
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Judges should not hold power positions after they retire.
We would like to check these two arguments on the basis of precedence, propriety and constitutionality.
It is pertinent to mention here that the embargo on practice by judges after retirement occurring in Article 124 (7) of the Constitution is altogether different from post-retirement assignments. The former prevents them from practising law in any court including the Supreme Court so that the independence of the judiciary can be ensured.
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Not the first time
Let’s take a look at precedence first.
Advocates with past political affiliations or tacit associations becoming judges is not unique. There are many earlier instances when politician-advocates became judges.
Justice Adarsh Kumar Goel: He was the general secretary of the RSS-affiliated advocates association — All-India Adhiwakta Parishad. He was appointed as a high court judge in 2001 and was elevated as a judge of the Supreme Court in 2014.
Justice P.N. Bhagwati: He was a lawyer and a Congress activist during the freedom struggle, and was appointed as a judge of the Supreme Court of India in 1973.
Justice Baharul Islam: He was a Congress Rajya Sabha MP. After he resigned, he was appointed as a Judge of Guwahati High Court in 1972. He was elevated as a Supreme Court judge in 1980. After retiring from the Supreme Court he once again became a Rajya Sabha MP.
Justice V. R. Krishna Iyer: Before his appointment as a judge, Iyer was a minister in the Communist Party of India-led Kerala government.
There is a long list of politicians becoming judges (An exhaustive list has been compiled by Raju Ramachandran, senior advocate at the Supreme Court).
Thus, Advocate L. Victoria Gowri becoming a judge should not be challenged, at least on this basis.
As far as propriety is concerned, this is not even a valid question in many democracies, including the US where affiliation to the ruling party and politicians is almost a prerequisite to become a judge in a higher court.
Looking back at pre-Independence India, a large number of lawyers took part in the freedom struggle and in the process became affiliated with various political parties. Making this corps of legal brains unfit for holding positions of judges was never under consideration by the constitution makers.
The premise that an apolitical person will be an unbiased judge is unfounded.
Now, let’s examine the second argument that judges should not hold positions of power after they retire. Retired judges getting so-called plum posts have many precedents.
In 1952, Justice Saiyid Fazl Ali was appointed as the Governor of Orissa. Prior to that, he was a judge at the Supreme Court. Another apex court judge Fathima Beevi was made the Governor of Tamil Nadu in 1997.
Former CJI P. Sadashivam was appointed as the Governor of Kerala in the early days of the Modi government.
Governorship is not the only position that retired judges take. After his retirement as Chief Justice of the Bombay High Court in 1958, M C Chagla was made India’s ambassador to the US. He also served as education minister and then as Minister for External Affairs in Congress ministries. Interestingly, he was part of the first law commission before his retirement where he denounced and called for an end to judges accepting post-retirement jobs sponsored by governments.
CJI M. Hidayatullah, who retired in 1970, went on to become the 6th Vice President of India and also held the position of acting President of India twice.
Internationally, former US President William Howard Taft was nominated to the post of Chief Justice of the United States by then President Warren Harding. He was Republican and served for almost nine years as the Chief Justice of the United States. He is the only one to have held both offices.
So the rule of precedence does not bar Justice Abdul Nazeer from taking the position of Governor.
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Resolved in the constituent assembly
What is the constitutional position? When the Constitution was being discussed by the Constituent Assembly, it considered almost all these perspectives which are being debated today.
The independence of the judiciary if Judges were to be appointed by the executive, post-retirement jobs by Judges and more were debated to ensure the independence of the Judiciary.
On 24 May 1949, three members of the Constituent Assembly, K. T. Shah, Jaspat Roy Kapur, and K. Santhanam, moved an amendment to prevent judges from holding any office after retirement. Shah wanted a complete embargo on Judges holding an executive position after retirement. Kapur wanted to limit it to the office of profit with an exemption to honorary work and Santhanam wanted a complete ban with an exception when the President gives permission after considering the impact on the independence of judiciary. The Assembly debated on the matter.
Both Nehru and Ambedkar weighed in.
“As a matter of fact, some of the greatest scientists have done their finest work after they reached that age. Take Einstein. I do not know what his age is, but certainly it should be far above sixty, and Einstein is still the greatest scientist of the age. Is any government going to tell him because you are sixty, we cannot use you, you make your experiments privately?” Nehru asked.
He added that pushing out “first-rate” men because of administrative rules, especially when the country is already in shortage of such men would be a “calamity” for India.
Ambedkar acknowledged the importance of this debate and emphasised that there can be no difference of opinion that “our judiciary must both be independent of the executive and must also be competent in itself”.
He further said, “Now, I come to the third point raised in the course of the debate on this amendment and that is the question of the acceptance of office by members of the judiciary after retirement. There are two amendments on the point, one by Prof. Shah and the other by Shri Jaspat Roy Kapoor. I personally think that none of these amendments could be accepted.”
Thereafter, the amendments were put to vote and all of them were rejected by voice vote. Therefore, the position emerged that the Judges are allowed to hold executive and all types of office of profit post-retirement and that it doesn’t compromise the independence of the Judiciary.
In our opinion, the matter should rest here.
Nitin Meshram practices law in the Supreme Court and various High Courts. He tweets at @meshramnitin_. Dilip Mandal is the former managing editor of India Today Hindi Magazine, and has authored books on media and sociology. Views are personal.
Note: One of the authors of this article, Nitin Meshram, appeared in the Supreme Court challenging Justice Ranjan Gogoi’s nomination to Rajya Sabha.
(Edited by Theres Sudeep)