The only people who hold the power of life and death over citizens in democracy are judges. Justices of the last court of resort — the Supreme Court (SC) of India — have nearly unfettered power, lawfully the final word.
Here I dare ask a very fundamental question: Should those at the apex of the power pyramid -- one of the strong independent pillars that make up a living democracy — an independent judiciary alongside the legislature (Parliament), executive and a free press accept post retirement jobs?
Once you retire as a Justice of the SC, should any sinecure from the Government of the day interest you, specially as the union of India has the maximum number of litigations and is the primary litigant in the highest court in the land?
Every law abiding citizen is expected to accept and adhere to the verdicts of the SC but, a dictum from Ancient Rome keeps popping in my head repeatedly these days — Caesar’s wife has to be above suspicion.
Image of absolute neutrality
We can also travel to the Ramayana which encapsulates the qualities of an ideal king in Lord Ram and from where the “agnipariksha” (ordeal by fire) of Sita forms part of popular lore our institutional memory in many ways.
Even after Sita passed the test of fire, the whispers of an ordinary man forced Lord Ram to banish his beloved wife to “vanvas” (exile) because as a ruler he had to not only do the right thing but, be seen to be doing it.
Separately, I have an issue as to why it was always women who had to take purity tests but, crucially (whether in myth or reality) judges have to reflect the virtues of always being above suspicion.
We the “Aam Aadmi” (public) must feel and judges must foster an image of absolute neutrality and fairness, not tainted by any personal considerations for justice to be meaningful.
Pride in independent judiciary
My dear reader of SWAT analysis I apologise for this long preamble in my conversation with you but, it is only to underline that the four pillars have to exist in absolute independence of each other.
Indians have huge pride in the independent judiciary but, particularly those who make up the rarefied realms of the Justices of our Supreme Court.
Jawaharlal Nehru our first Prime Minister took the dictum of independence so much to heart that he refused to visit the building where the SC sits, fearing even subliminal influence.
All this comes to mind as Justice S Abdul Nazeer retired from the Constitutional Court in January this year and has been nominated by the Centre as the Governor of Andhra Pradesh on February 12.
Less than a month later so, literally not even a cooling off in any sense of the word. Before this we had Chief Justice, Ranjan Gogoi being nominated by the Government to the “distinguished category” in the Rajya Sabha.
Gogoi has not spoken a single word in the House and had actually sat in on his own hearing as a Justice in a case of sexual harassment against himself. Predictably he was found not guilty. Gogoi retired in November 2019 and was nominated in March 2020 for a six-year term.
Ashok Bhushan, another Justice upon retirement, was appointed chairman of the National Company Law Appellate Tribunal (NCLAT) by the Centre. Arun Kumar Mishra upon his retirement from the SC was appointed the chairperson of the National Human Rights Commission (NHRC) by the Government.
Prestige of the institution
The SC hears and decides the most important and sensitive cases of the day. The SC is the only court competent to hear Constitutional cases.
Justice H R Khanna will perhaps go down in Indian history as an exemplary judge who dissented in a judgement during the dark days of the Indira Gandhi imposed emergency during 1975/77, upholding the right of habeas corpus or a fundamental right to life and liberty, enshrined in Article 21 of the Indian Constitution.
This came at great personal cost as he was superseded and his junior colleague appointed Chief Justice. Justice Khanna resigned in protest and continues to be an icon in India.
In recent years judicial departures like submissions allowed to the Centre in “sealed envelopes” in the SC have been grave worries.
The late Arun Jaitley, a distinguished lawyer and a cabinet minister, said in the House in a long and fiery speech said “the desire for a post retirement job influences pre retirement judgements. It is a threat to the independence of the judiciary”.
I don’t think I can say it better than Jaitley. Finally a plea to our current Justices: Your honour, my very humble submission: We need more Justices like Khanna. We, the people, who vest our trust in you.
