The recent nomination of Ex-CJI Ranjan Gogoi to Rajya Sabha has not only questioned the separation of power doctrine but has also brought about the issue of post- judicial appointments. In Rajya Sabha, there has always been mixed nominations wherein 12 MPs are nominated from a ratified category of people who have ‘special knowledge or practical experience in respect of literature, science, art and social service’.
Separation of power
The French scholar Montesquieu pointed out as early as in the sixteenth century that placing power in the hands of only one organ or group in a government entails tyranny. Thus to check this problem he felt that the solution would be to vest power in three distinct organs of the government, namely, the legislature, the executive and the judiciary. This would allow each organ to be independent of the other such that no encroachment or overlapping of powers may exist and a harmony may be reached which would aid the smooth running of the government. These words state the Doctrine of Separation of Powers as given by Montesquieu, “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing laws, that of executing public resolutions, and of trying the causes of individuals. This doctrine stands testimony to Montesquieus belief that powers of the executive and the legislature if vested in the same hands would result in a situation of arbitrariness and despotism, for the executive will be enabled with the power of having any laws it wishes, to be passed, alternatively if the judiciary and legislature or executive were not separated then the common man would have no defence against the state. These Montesquieu saw as a serious threat to the liberty of the people and in order to preserve them extolled the theory of separation of powers.
However, this power has been used very randomly, nominating people from the different fields. This raises a question on such nomination. Another important facet of this nomination is violation of Separation of Power and Independence of Judiciary which are the pillars of Basic Structure Doctrine, propounded by judiciary. In India, there is not strict doctrine of separation of power. It is always supplemented with doctrines of “checks and balances”. However, there is no such flexibility regarding independence of judiciary. Separation of power does not entail zero interaction among different organs. The very fact that executive and judiciary have to interact at some junctures is quite true in the context of India. Various occasions like appointment of judges where CJI and Law minister play a crucial role despite there being a collegium system, budget and finance for supreme court reflect the flexibility in the doctrine of separation of power. Interaction among different organs is based on principles and pragmatism. Moreover, such interactions do not affect the independence and uncontaminated nature of judiciary unless judiciary is pressurized in such situations. Beyond this, conventions have also showed that meetings on formal occasions instead of personal meetings are also permissible. The issue of post- judicial appointment also assumes importance in this context. The nomination within barely four months of retirement also raises question regarding hurried and immediate appointment. Generally, a cooling-off period is required for various appointments to administrative bodies so that the possibility of quid pro quo or conflict of interest does not arise.
Those officials who hold sensitive posts are generally barred from accepting any appointment for a reasonable period of time which is generally 2 years from their retirement. Such cooling-off period becomes important for eliminating/mitigating any nexus between the previous incumbency and post-retirement appointment. However, in such case, no cooling off period seems to have been given even for the post like CJI which questions the morality of such appointment. Generally, post-judicial appointments are manifestation of post-retirement quid pro quo which doubts the judgments rendered in the previous incumbency as the choice of selection for these posts is in the hands of government. Thus, in such a scenario, this appointment quashes the very pillars on which our constitutional machinery is standing. Sweeping reforms in the context of post-judicial appointments and stringent law regarding cooling off period to avoid suspicion of conflict of interest become needs of the hour. One of the reforms which can be suggested amid such situation is no role of executive in the post-judicial appointment. To run the system smoothly and efficiently, the core ideas and principles backing this system have to be protected.
Author Details: Madhavi Bhora
The views of the author are personal only. (if any)