On March 16 2020, the President of India nominated former Supreme Court Chief Justice Ranjan Gogoi to the Rajya Sabha. This nomination, under Article 80 of the Constitution of India 1950, has raised eyebrows and generated controversy. This not a first – there have been many retired Judges who have been appointed to executive, legislative and other offices. However, Justice Gogoi’s nomination has been particularly scrutinised and seen as an indication of the breakdown of the separation of powers and judicial independence.
While our Constitution was being framed, on 7 June 1949, K.T. Shah moved a proposal in the Constituent Assembly to include a provision in the Constitution that barred former Supreme Court and High Court Judges from being appointed to any executive office under the Union or State governments. He felt that this measure would protect separation of powers and judicial independence.
Shahs reminded the Assembly that in the past, the executive had attempted to influence judicial officers with attractive executive postings. And this, he predicted, could get worse – because unlike before (colonial India) when executive positions were few, in independent India, there would be many. Further, Shah said that while the objectives of his proposal could be served by developing and adhering to precedent or convention, he found the issue critical enough to warrant a specific mention in the Constitution itself.
H.V. Kamath and Shibban Lal Saxena entered the debate and supported Shah. Kamath said:
…the Supreme Court in our country will have to arbitrate and adjudicate upon disputes-constitutional disputes between the Centre and the Units as well as between unit and unit. The Executive is interested in many of these questions and it is very likely-more often than not-that a particular matter which is coming up before the Supreme Court may be such vital importance and interest to the President or the Executive that they might like the Supreme Court to give a particular decision upon that matter…
Further, he wanted Judges in India to ‘models of Judicial independence, fearless in their judgments and act without fear or favour of the State authorities or the Central authorities.’. Kamath viewed Shah’s proposal as a means to facilitate this.
The President of the Assembly then turned to B.R. Ambedkar: ‘Dr Ambedkar, do you wish to say anything about Prof. Shah's motion?’ Ambedkar began with a curt ‘I regret that I cannot accept this amendment by Prof. Shah’.
He then proceeded to state what the separation of powers meant to him: a person holding judicial office should not hold an executive office simultaneously. Ambedkar seemed to insinuate that Shah’s understanding of separation of powers and proposal to protect it was beside the point.
Curiously, Ambedkar does not seem to think that a sitting Judge might act in ways to obtain a desired outcome (executive or other appointments) for herself/himself for his/her post-retirement period.
...The judiciary to a very large extent is not concerned with the executive: it is concerned with the adjudication of the right of the people and to some extend of the rights of the Government of India and the Units as such. To a large extent it would be concerned in my judgment with the rights of the people themselves in which the government of the day can hardly have any interest at all. Consequently the opportunity for the executive to influence the judiciary is very small and it seems to me that purely for a theoretical reason to disqualify people from holding other offices is to carry the thing too far...
It is indeed quite striking that Ambedkar feels that the executive would have no interest in meddling with judicial affairs. Quite a divergent view when compared to Shah and Kamath.
Ambedkar also argued that unlike the United Kingdom, where Judges retire at 70, and the United States where Judges hold office till they pass away, in India, Judges are made to retire at a relatively early age 60 with a low pension. Therefore, Ambedkar said that barring opportunities for retired judges to hold office would not be ideal and ‘places too many burdens on the members who accept a post in the judiciary’.
After Ambedkar’s intervention, the Assembly dropped Shah’s proposal.