Mixed reaction to SC’s refusal to lay down cooling-off period for judges

There have been mixed reactions to the Supreme Court’s dismissal of a petition on Wednesday (6 September), seeking a cooling-off period for judges of constitutional courts.

A section of the lawyers held that since in India, the government is the biggest litigant—with over 70 per cent of the cases in court involving union or state governments—a cooling-off period should and indeed could have been laid down by the apex court. Others argued that given the way the petition and the prayer clause were drafted, the court had little option but to dismiss it.

A public interest litigation by the Bombay Lawyers Association was dismissed by a Supreme Court bench comprising justices Sanjay Kishan Kaul and Sudhanshu Dhulia. The petition had prayed for a cooling off period of two years before a retired judge of a constitutional court could accept a ‘post-retirement appointment’.

The petition was triggered by the appointment of S Abdul Nazeer, retired Supreme Court judge, as governor of Andhra Pradesh within a month of his retirement earlier this year. The petition pointed out that the justice in question was part of the benches that ruled in favour of the current dispensation in the controversial Babri Masjid–Ram Janmabhoomi dispute and the one that threw out a challenge to the demonetisation of currency.

Since 2014, Justice Nazeer is the third Supreme Court judge to accept appointments soon after their retirement. Two former chief justices of India, P. Sathasivam and Ranjan Gogoi, accepted appointment as governor and nomination to the Rajya Sabha respectively. Justice Sathasivam was appointed governor five months after demitting office and Justice Gogoi after four months.

Several Acts of Parliament, however, provides for the appointment of retired judges as chairpersons or members of different commissions, boards and tribunals.

Although the petitioners argued in court yesterday that they were referring to ‘political’ appointments like the one accepted by Justice Nazeer, the court pointedly asked the counsel why the petition mentioned this solitary case and not the others.

Lawyers disappointed with the ruling refer to the Supreme Court recommending the composition of a committee to appoint election commissioners ‘till a law is framed by Parliament’.

The ruling prompted the government to introduce the contentious bill that sought to tighten the government’s control over the appointments by providing for the prime minister and a union minister nominated by him in the committee of three members to ensure that the governmental view would prevail. “In this case too the court could have laid down a cooling-off period in the interim” till Parliament debated the issue and made a law, one of them quipped.

Advocate Ahmad Abdi, appearing for the petitioners, argued that controversial political appointment of judges undermined people’s confidence in the independence of the judiciary. He cited the opinion of several retired justices and chief justices and the Law Commission on the subject. Even when there may not be any actual quid pro quo, he argued, political appointments have eroded public confidence in the higher judiciary.

He 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 cooling-off period for judges accepting post-retirement political appointments.

The petitioners also cited the example of former chief justice of India Mohammad Hidayatullah, who had refused to accept any political appointment immediately after his retirement. He went on to become the vice-president (and later, the acting president) nine years after demitting office as the chief justice.

The court, however, refused to intervene and left the matter to the conscience of individual judges and to parliament.