To be or not to be – that is the question: Justice Ranjan Gogoi’s nomination to the Rajya Sabha: A Constitutional Analysis

I. INTRODUCTION

1. On March 19, 2020, Justice Ranjan Gogoi, former Chief Justice of India took oath as Member of the Rajya Sabha amidst much furore. The opposition staged a walk-out with cries of “shame”. There was serious hyperventilation in the social media and a flurry of opinions expressed by former Judges, advocates and politicians. In the middle of all this was the omnipresent and omniscient twitterati and social media pundit. Justice Gogoi was himself on prime-time television being interviewed by news anchors and answering questions pertaining to his rather eventful and controversial tenure as Chief Justice with his characteristic preciseness. What was missing in the whole discourse was a serious examination of the legality or rather constitutionality of the move. In the din and clamour of public outrage, one could hardly find a handful of media reports and blogs which even superficially made an effort to look into the question beyond a terse reference to a Law Commission Report and vague references to the oft-quoted doctrine of separation of powers. This article therefore seeks to remove the cobwebs and smokescreens to look at the issue dispassionately and hopefully with a degree of seriousness that it deserves.

II. LAW

A. THE CONSTITUTION

2. The relevant constitutional provisions may be broadly segregated into two categories viz. those having immediate relevance to the subject and those intersecting at the peripheries.

A.1 Provisions having immediate relevance

       3. The constitutional provisions having immediate and direct implication for the subject are Articles 80, 84, 102, 103, 124, 148, 220 and 319.

4. Article 80 deals with the composition of the Rajya Sabha or Council of States and provides that the Council of States shall consist of twelve members to be nominated by the President being persons having special knowledge or practical experience in respect of matters such as literature, science, art and social service. This is in addition to the not more than two hundred and thirty-eight elected representatives of the States and the Union Territories.

5. Article 84 lays down the qualifications for a Member of Parliament, which are as follows:

1. He must be a citizen of India and must subscribe to oath or affirmation as per the form set out in the Third Schedule;
2. He is, in case of Council of States, not less than thirty years of age and in case of House of the People, not less than twenty-five years of age; and
3. Possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament[1].

6. Article 102(1) lays down the following disqualifications of members of either House of Parliament:

(a) If he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;

(b) If he is of unsound mind and stands so declared by a competent court;

(c) If he is an undischarged insolvent;

(d) If he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) If he is so disqualified by or under any law made by Parliament.[2]

The Explanation to the section clarifies that for the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or such State.

Article 102(2) provides that a person shall be disqualified for being a member of either House of Parliament if he is disqualified under the Tenth Schedule which deals with law of anti-defection.

7. Article 103(1) provides that if any question arises as to whether a Member of either House of Parliament has become subject to any of the disqualifications mentioned in Article 102(1), the question shall be referred for the decision of the President and his decision shall be final. Article 103(2) provides that before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

8. Article 124 provides for constitution of the Supreme Court of India comprising the Chief Justice and His Companion Justices. Article 124(2) provides that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the States as the President may deem necessary, provided that in the matter of appointment of any Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. The said clause further provides that a Supreme Court Judge shall hold office till the age of sixty-five years and may resign from office either by addressing letter to President or may be removed in the manner provided. Clause (2-A) provides that the age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide. Clause (3) provides for the qualifications for appointment as a Judge of the Supreme Court and significantly Clause (7) provides that no person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.

9. Article 148 deals with the office of Comptroller and Auditor-General of India and pertinently, Clause (4) postulates that the Comptroller and Auditor General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.

10. Article 220 lays a post-retirement restriction on the right to practice of retired High Court Judges. The restriction is similar to that under Article 124(7) for Supreme Court Judges, except that the retired High Court Judges may practice before the Supreme Court and other High Courts.

11. The last in the list of provisions under this sub-head is Article 319 which contains similar prohibition on the right of the Chairman and Members of Union and State Public Service Commission to seek further employment as applicable to the Comptroller and Auditor-General of India under Article 148(4). The prohibition is not absolute except in the case of the Chairman of the Union Public Service Commission. The Chairman of the State Public Service Commission is eligible for appointment as Chairman or Member of the Union Public Service Commission or as Chairman of any other State Public Service Commission. Likewise, a member, other than the Chairman, of the Union Public Service Commission shall be eligible for appointment as Chairman of the Union Public Service Commission or as the Chairman of a State Public Service Commission. Similarly, a member, other than the Chairman, of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of Union Public Service Commission or the Chairman of that or any other State Public Service Commission.

A.2 Provisions intersecting at the peripheries

12. The provisions that have ancillary or partial relevance to the subject are Articles 53, 74, 83, 101, 106, 112, 125 and 312-A.

13. Article 53, in clause (1) provides that the executive power of the Union shall be vested in the President and shall be exercised by him directly or through officers subordinate to him in accordance with the Constitution. Article 74 provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice.

14. Article 83, in clause (1) provides that the Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members shall retire as soon as may be on the expiration of every second year in accordance with provisions made in this behalf by Parliament by law.

15. Article 101(1) provides that no person shall be member of both Houses of Parliament and provision shall be made by Parliament for vacation by a person who is chosen as member of both Houses of his seat in one House or the other. Clause (2) provides that no person shall be member both of Parliament and of a House of the Legislature of a State, and if a person is chosen a member both of Parliament and of a House of the Legislature of a State, then, at the expiration of such period as may be specified in rules, that person’s seat in Parliament shall become vacant, unless he had previously resigned his seat in the legislature of the State. Clause (4) reads that if for a period of sixty days a member of either House of Parliament is, without permission of the House, absent from all meetings thereof, the House may declare his seat vacant, provided that in computing the period of sixty days, any period during which the House is prorogued or adjourned for more than four consecutive days is to be excluded.

16. Article 106 deals with salaries and allowances of Member of Parliament as may be determined by Parliament by law.[3]

17. Article 112(3) provides for the expenditures which shall be charged on the Consolidated Fund of India, which inter alia includes the salaries, allowances and pensions to a Judge of the Supreme Court, but does not include the salaries, allowances and pensions of Members of Parliament. Article 125 deals with salaries, privileges and allowances paid to Judges of the Supreme Court and the proviso to clause (2) thereof provides that the privileges, allowances, right to leave of absence or pension of a Judge shall not be varied to his disadvantage after his appointment. Article 312-A deals with the power of Parliament to vary or revoke condition of service of officers of certain services appointed by the erstwhile Secretary of State or Secretary of State in Council but the proviso thereto exempts such of these persons who is or has held office of Chief Justice or Judge of the Supreme Court or High Court, Comptroller and Auditor-General of India, Chairman & Members of Union or State Public Service Commission or Chief Election Commissioner. 

B. STATUTORY LAW

18. The relevant legislations are the Representation of the People Act, 1951 and the Parliament (Prevention of Disqualification) Act, 1959.

19. The Representation of the People Act, 1951[4] provides for qualifications and disqualifications of members of parliament, in addition to those prescribed in the Constitution and procedure for filing of election petitions before the High Courts for determination of such question[5]. Section 3 thereof provides that a person shall not be qualified to be chosen to the Council of States unless he is an elector for a parliamentary constituency in India. Section 8 provides for disqualification in the event of conviction of the offences mentioned in the section. Section 8-A prescribes disqualification on the ground of corrupt practice while Section 9 provides for disqualification on ground of dismissal from office under the Government of India or Government of a State on account of corruption or disloyalty. Section 9-A provides for disqualification in case of subsisting contract for supply of goods or execution of works for the Government. Section 10 provides for disqualification on ground of holding office under a government company. Finally, Section 10-A provides for disqualification where the Election Commission is satisfied that the person in question has failed to lodge and account for election expenses.

20. The Parliament (Prevention of Disqualification) Act, 1959[6] which underwent substantial amendment in 2006, provides a list of offices which shall not disqualify holders thereof to be chosen as Members of Parliament.

21. It will appear from the above that there is no express prohibition for a retired Judge of the Supreme Court, including the Chief Justice to be chosen i.e. elected or nominated to be a Member of the Council of States/Rajya Sabha. This, despite elaborate provisions having been laid down both with respect to qualification/disqualification and with respect to potential conflicts, arising out of more than one role being adorned by a constitutional functionary in different organs of the State. However, with a view to understand the legislative intent behind the relevant constitutional provisions, it may be germane to look at the preparatory documents i.e. Constituent Assembly Debates[7].

III. CONSTITUENT ASSEMBLY DEBATES

22. Discussions relevant to the subject were held in the Constituent Assembly on May 24, 1949 when Article 103 of the Draft Constitution which corresponds to the present Article 124 was discussed and debated.[8]

23. The discussion had, is significant to merit extensive reproduction in the present paper.

24. While moving an amendment to introduce and additional Article 103-A, one of the members Shri. P.K. Sen stated as follows:

“Although it is not really relevant, I may mention that I have also tabled another amendment – it is new Article 103-A in which I have said that a person who is holding or has held the office of Judge of the Supreme Court shall not be eligible for appointment to any office of emolument under the Government of India or a State other than that of the Chief Justice of India or Chief Justice of the High Court, provided that the President may with the consent of the Chief Justice of India depute a Judge of the Supreme Court temporarily on other duties: Provided further that the article shall not apply in relation to any appointment made and continuing while a proclamation of an emergency is in force if such appointment is certified by the President as necessary in the national interest.Barring these exceptions, I desire that the Judge who has retired will not be able to engage himself in any office of emolument under the Government in any other field of  activity, and that is exceedingly necessary, because otherwise there is always the phenomenon of the Judge while in office aligning himself with a political party or with commercial caucuses, which is a very undesirable thing. If all those safeguards are to be adopted, one of the most essential things to be done is also to give him the pension as if he had served up to the age of sixty-five, the utmost limit provided for by the Constitution.

It may be said that all this will be provided for by the rules. I doubt if there is any such thing in the Constitution, and when there is such thing in the Constitution, and when there is the express provision in the Constitution that he has to serve up to sixty-five years of age, if he does not serve – whether it be on account of ill-health or any other consideration  – the result will be that he will perhaps and naturally in that case not will it affect his attitude while he is in office, because he will try and look about for something which he may get for the purpose of saving him from penury. I do think that the Judge should be made perfectly independent so that he may live in dignity when he is in retirement, although the retirement may be premature – before the age of sixty-five.[9]

25. The difference between an office of profit under the Government and membership to Parliament was clearly drawn by even the Members seeking a prohibition on post-retirement appointments. In this connection, attention is drawn to amendment proposed by Prof. KT Shah:

“Sir, I beg to move Amendment No. 1843:

   That after clause (2) of Article 103, the following new clause be added:

(2-A) Any person who has once been appointed as Judge of any High Court or Supreme Court shall be debarred form any executive office under the Government of India or under that of any unit, or, unless he has resigned in writing from his office as Judge, from being elected to a seat in either House of Parliament, or in any State Legislature.

This follows the general principle I have been trying to lay before the Houses viz. or keeping the judiciary completely out of any temptation, and contract with the executive or the legislative side. Whether during his tenure of office or in the ordinary course of Judgeship or even on retirement, I would suggest that there should be a constitutional prohibition against his employment in any executive office, so that no temptation should be available to a Judge for greater emoluments, or greater prestige which would in any way affect his independence as a Judge.

I further suggest also that a Judge should be free to resign his office and then it would be open to him to have all the rights of an ordinary citizen, including contesting a seat in the legislature, but certainly not during his tenure of office I consider that these are so obvious that no further words need be added to support it. I would only say once more that in the past we had bitter experience of high-placed government servants who had risen fairly high in the scale of service, used to secure on retirement influential positions in Britain or directorships in concerns operating in this country. On account of the official position which they had held here in the past, they were able to exercise an amount of undue influence. Such practices the Congress and other parties had frequent occasion to object to. As such I suggest that that practice should now be definitely avoided. I take it that this is also on a par with that principle, and as such should be acceptable to the House.”[10] 

26. Similar views were echoed by Shri Jaspat Roy Kapoor:

“Mr. President, I beg to move:

That in Amendment No. 1843 of the list of Amendments for the proposed new clause (2-A) of Article 103, the following be substituted:

(2-A) No Judge of Supreme Court shall be eligible for further office of profit either under the Government of India or under the Government of any State after he has ceased to hold his office.

Sir, I am in agreement both with the principle and with the substance of Professor Shah’s Amendment No. 1843. But I am moving my amendment because I find that Professor Shah’s amendment is defective in two respects. Firstly, in his amendment we have the words ‘Any person who has once been appointed as Judge of any High Court or Supreme Court shall be barred from any executive office.’ It means that he shall be prevented from performing any duties under the Government of India or the Government of any other State even in an honorary capacity. I think it should be open to the Government of a State or the Centre to utilise the service of retired Supreme Court Judges in an honorary capacity.

The second defect in the Professor’s amendment is that it unnecessarily lays down that a Judge of a Supreme Court shall be eligible to be a member of either House of Parliament after resigning from his seat. I think, Sir, it shall be applicable to every government servant that so long as he is holding any office of profit he shall not be eligible to be a member of any legislature, be it Provincial or Central. So this part of the amendment of Professor Shah is unnecessary. Hence I am moving my amendment.

Sir, the Professor has rightly said that in order to maintain the independence of the judiciary there should be no temptation before any Supreme Court Judge of the possibility of his being offered any office of profit after retirement. That is the first reason. Secondly, as I said while moving another amendment a few minutes ago, the Judges of the Supreme Court, after retirement should be prepared to offer their services to society in an honorary capacity. Thirdly, I find that this principle is going to be accepted in the case of the Auditor-General to Article 124(3), with which we shall deal after sometime, provides that the Auditor-General shall not be offered any office after his retirement. The same principle should be made applicable in the case of the Supreme Court Judges. While I was discussing this point with a very learned Member of this House I was told that it should be open to the State to utilise the services of retired Supreme Court Judges in various capacities. I have absolutely no objection to that. But no emoluments should be offered to the retired Supreme Court Judges. A retired Supreme Court Judge may be called upon to perform various and important duties. But then he should be content with the pension which he must necessarily be receiving and no further emoluments should be offered.”[11]

27. Again on the dichotomy between office of profit and Membership of Parliament, the following observations of Shri Das Bhargava are relevant:

“I want to make one observation more in regard to Amendment No. 1843. It has been pointed out that after retirement, no Judge of the Supreme Court should hold any office of profit, nor should he be allowed to practice in any of the courts. So far as it goes, this provision is quite wholesome but at the same time, the restriction put upon his activities in Amendment No. 1843 is not justifiable. According to me a Judge of the Supreme Court, after his retirement, is perfectly fitted to become a Member of the House of People or the Council of States. Therefore, I am of the view that though a Judge should not be allowed to practice in any subordinate court subsequent to his retirement, he should be allowed to continue his activities as a Member of the legislature.”[12]

28. Opposing the amendments in totality, Dr. BR Ambedkar stated as follows:

“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 amendment could be accepted. These amendments have been moved more or less on the basis of the provision that have been made in the Draft Constitution relating to the Public Service Commission. It is quite true that the provision has been made that no member of the Public Services Commission shall be entitled to hold an office under the Crown for a certain period after he has retired from the Public Services Commission. But it seems to me that there is a fundamental difference between the members of judiciary and the members of the Federal Public Services Commission. The difference is this. The Public Services Commission is serving the Government and deciding matters in which the Government is directly interested, viz. the recruitment of persons to the civil service. It is quite possible that the minister in charge of a certain portfolio may influence a member of the Public Service Commission by promising something else after retirement if he were to recommend a certain candidate in whom the minster was interested. Between the Federal Public Service Commission and the Executive the relation is very close and integral one. In other words, if I may say so, the Public Service Commission is at all times engaged in deciding upon matters in which the Executive is vitally interested. The judiciary decides cases in which the Government has, if at all, the remotest interest, in fact no interest at all. The judiciary decides cases in which the Government has, if at all, the remotest interest, in fact no interest at all. The judiciary is engaged in deciding the issue between citizens and very rarely between citizens and the Government. Consequently, the chances of influencing the conduct of a member of the judiciary by the Government are very remote, and my personal view, therefore, is that the provisions which are applied to the Federal Public Services Commission have no place so far as the judiciary is concerned. Besides  there are a very many cases where the employment of judicial talent in a specialised form is very necessary for certain purposes. Take the case of our Friend Varadachariar. He has now been appointed member of a Commission investigating income-tax questions.

Therefore, who else can be appointed to positions like this, except persons who had judicial talent? It would be a very great handicap if these very persons who possess talent for doing work of this sort were deprived by provisions such as Shri Jaspat Roy Kapoor suggests. And I have said that the relation between the executive and judiciary are so separate and distant that the executive has hardly any chance of influencing the judgment of the judiciary. I therefore suggest that the provision suggested is not necessary and I oppose all the amendments.”[13]

29. Dr. BR Ambedkar’s view prevailed and the suggested amendments were either negatived or withdrawn[14].

30. It will appear from the above that the Constituent Assembly negatived the idea that there should be a post retirement prohibition on retired Supreme Court Judges from taking up office of profit under the Government of India or the States. It is further apparent that even so far as the members who espoused such prohibition, Membership of either House of Parliament was not considered an office of profit or employment under the Government. Contrariwise, it was felt that once a Supreme Court Judge resigns or retires from office, he may be well attuned to serve the nation in the capacity of a Member of Parliament. 

31. It next becomes necessary to understand if the Supreme Court or the High Courts have in their rich jurisprudence understood the subject differently. Towards this end, an effort has been made to go through case-laws with reference to the provisions mentioned above. The results of the findings are shared below.

IV. CASE LAW

32. The  Supreme Court has consistently held that whatever is not expressly prohibited in the Constitution is permissible[15].

33. The Supreme Court has held in Kuldip Nayar v. Union of India[16] that Members of Rajya Sabha nominated by the President on the aid and advise of the Council of Ministers are no different from the elected members of the Rajya Sabha except that the elected members can participate in the election of the President whereas the nominated members cannot do so. Hence the word “chosen” is used in Article 84 and Section 6 of the Representation of the People Act, 1951[17].

34. The provisions contained in Article 102 read with Sections 8, 8-A, 9, 9-A, 10 and 10-A of the Representation of the People Act, 1951 are exhaustive of the grounds for disqualification of Members of Parliament. There is no room for any new ground to be added by interpretation and Parliament has exclusive legislative power in this regard[18]. In Manoj Narula v. Union of India[19], it was held that where a disqualification was not provided under the Constitution or by Parliament by law, the same could not be read in by recourse to principles of implied limitation, silence of the Constitution, constitutional morality, good governance or constitutional trust[20].

35. The Supreme Court has held that the procedure for determining any question of disqualification post-nomination and pre-election is to be determined by the mode of filing election petition before the High Court under Section 100 of the Representation of the People Act, 1951. Post-election, the procedure is prescribed under Article 103 and the matter is to be referred to the President who is to consult the Election Commission[21].

36. Members of Parliament are not employees or officers of the Government, even though they may be drawing salary and allowances and are entitled to pension[22] and judicious irreverence to vintage precedents may be necessary to make sure that interpretation of “office of profit” does not cast the net too wide[23].

37.  It will appear from the aforesaid decisions that:

(a) The disqualifications of Members of Parliament are exhaustively contained in the provisions of the Constitution read with the sections of the Representation of Peoples Act. No further restriction or disqualification can be read in.

(b) The procedure to decide questions of disqualification before election is prescribed under the Representation of the People Act, 1951 and post-election underArticle 103 of the Constitution. This is the procedure that is to be scrupulously followed.

(c) There is no difference so far as construction of constitutional or legal provisions are concerned between elected and nominated Members of Rajya Sabha.

(d) Members of Parliament including Rajya Sabha are not holders of office of profit.

38. Quite clearly the legal position emanation from the above discussion is consistent with the intention of the founding fathers of the Constitution as recorded in the Constituent Assembly Debates. It is therefore concluded that there is no prohibition or restriction whatsoever in law for a retired Judge of the Supreme Court, including the Chief Justice of India to be nominated to the Rajya Sabha.

V.  MORALITY/PUBLIC OPINION

39. Having concluded that there was no impediment in law to Justice Gogoi accepting nomination of the Rajya Sabha, it will appear that in the field of public opinion much emphasis has been laid to the recommendations of the 14^th Law Commission of 1958[24]. It becomes imperative therefore to examine whether the opinion of the Law Commission, which was not accepted or acted upon by the Government of the day, is germane from the moral if not legal point of view.

40. It however appears that the reliance on the Law Commission Report as with the Constituent Assembly Debates in several fora especially online[25], has been done in a selective and in a somewhat sensational manner. The relevant Constituent Assembly Debate has been discussed in length above and the true import can be gathered from the extracts above[26] as also from a reference to the debates first-hand.

41. The Law Commission in its Report recommended a prohibition on retired Judges of the Supreme Court and High Courts from accepting “any employment” under the Union or State except employment as ad hoc Judge under Article 128 for Supreme Court Judges. Further recommending that the right to practice of retired High Court judges in Supreme Court or other High Courts under Article 220 should be done away with[27]. The Report is completely silent and contains no recommendation so far as accepting membership of Parliament is concerned.

42. Interestingly, the Report also recommends that the pension of retired Judges both of Supreme Court and High Court should be increased and a bar be introduced against Supreme Court and High Court Judges engaging in chamber practice[28] which would mean giving opinions and arguably even arbitrations.

43. While the Report has been referred to in several places, these other recommendations have been ignored, and in any event, the incorrect impression has been conveyed that holding membership of Parliament amounts to holding office of profit.

44. The recommendations put forth at a given point of time in our legal history, ought not to be blindly and indiscriminately relied upon, or accepted as gospel truth. There are limitations of time and expediency which militate against acting upon the recommendations even otherwise. This perhaps explains why the Government of day did not act upon them.

45. Keeping aside the distinction between office of profit and membership of Parliament, a further consideration which would go against a prohibition on retired Judges from taking up engagements post- retirement, may be found in the reasons which propelled the Constituent Assembly to go with what was then a higher retirement age for Judges. The view may be best summarised in the words of Pandit Jawaharlal Nehru and stares us today with equal relevance:

“Sir, I wish to say about one particular matter with which some amendments have dealt, that is, the age-limit of the Supreme Court Judges. Some Members have proposed an amendment reducing the proposed age-limit to sixty; one of them suggested increasing it to sixty-eight. It is rather difficult to give any particular reasons for a particular age, sixty-five or sixty-six; there is not too much difference. After much thought, those of us who were consulted at that stage thought that sixty-five would be the proper age limit.

This business of fixing age-limits in India in the past was, I believe, governed by entirely the service view. The British Government here started various services, the I.C.S. which was almost manned entirely by Britishers and then later on some Indians came in and other services. The whole conception of Government was something revolving round the interests of the services. No doubt, these services served the country; I do not say anything against that. But, still, the primary consideration was the service and all these rules were framed accordingly.

Now, the other view is, how you can get the best service out of an individual for the nation. Each country spends a lot of money for training a person. Now, we have to get the best out of the training you give to a person. You should not, when he is quite trained and completely fit, discard him and get an untrained person to start afresh. Now, it is difficult, of course, to say when a person is not working to the peak of his capacity. In different professions the peak may be different with regard to age. Obviously a miner cannot work as a miner at sixty or anywhere near sixty. An intellectual worker may work more. So also about writers. It will be manifestly absurd to say that a writer must not write after a certain age, because he is intellectually weak. Or for the matter of that, I rather doubt whether Honourable Members of this Assembly will think of fixing an upper age-limit for membership of this Assembly, or for any Cabinet ministership or anything of that kind. We do not do it. But the fact is, when you reach certain top grades where you require absolutely first-class personnel, then it is a dangerous thing to fix a limit which might exclude these first-rate men. I would give you one instance which came up in another place. It was the case of scientists. In such a case, can we say that he cannot work because he has reached the age of sixty? 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?”. There are some scientists in India-first class scientists-and the question came up before me, should they retire? I pointed out that we are already short of first-rate men, and if you just push them out because of some rules fixed for some administrative purpose, which have nothing to do with the highest class of inventive brain work, it would be a calamity for us. We would not get even the few persons we have got for our purpose.

With regard to Judges, and Federal Court Judges especially, we cannot proceed on the lines of the normal administrative services. We require top men in the administrative services. Nevertheless, the type of work that a Judge does is somewhat different. It is, in a sense, less physically tiring. Thus a person normally, if he is a Judge, does not have to face storm and fury so much as an administrative officer might have to. But at the same time it is highly responsible work, and in all countries, so far as I know, age-limits for Judges are far higher. In fact there are none at all. In America the greatest Judge that I believe the Supreme Court produced went on functioning till the age of ninety-two-Holmes-and he went on functioning extremely well up to the age of ninety-two for thirty or forty years running. If you go to the Privy Council of England I do not know what they are now, but some years back when I went there I saw patriarchs sitting there with long flowing beards; and their age might have been anything up to a hundred years, so far as looks were concerned. May be, you may over do this type of thing. But the point is we must not look upon this merely as a question of giving jobs to younger people. When you need the best men, obviously age cannot be a criterion. A young man may be exceedingly good, an old man may be bad. But the point is if an old man has experience and is thoroughly fit, mentally and otherwise, then it is unfortunate and it is a waste from the State’s point of view to push him aside, or force him to be pushed aside, and put in some one in his place who has neither the experience nor the talent, perhaps. We are going to require a fairly large number of High Court Judges. Of course the number of Supreme Court Judges will be rather limited. Nevertheless, there are going to be more and more openings, and the personnel at our disposal is somewhat limited. Judges presumably in future will come very largely from the bar and it will be for you to consider at a later stage what rules to frame so that we can get the best material from the bar for the High Court Federal Court Judges. It is important that these Judges should be not only first-rate, but should be acknowledged to be first-rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive government, and whoever may come in their way. Now, taking all these into consideration I feel that the suggestion made by the Drafting Committee with regard to Federal Court Judges, that the age-limit should be sixty-five, is by no means unfair, for it does not go beyond any reasonable age-limit that might be suggested. Many of us here are, as you are aware, dangerously near sixty or beyond it. Well, we still function, and function in a way which is far more exhausting and wearing than any High Court Judge can be. We are functioning presumably because in the kindness of your heart, in the country’s heart, you put up with us, or think us necessary. Whatever it be, you can change us and push us out if you do not like us. There is no age-limit. But the High Court Judges and Federal Court Judges should be outside political affairs of this type and outside party tactics and all the rest, and if they are fit, they should certainly, I think, be allowed to carry on. Of course every rule that you may frame may give rise to some difficulties and undesirable men may carry on. But a man appointed to the Federal Court is presumably one who has gone through an apprenticeship in the High Court somewhere. He cannot be absolutely bad, otherwise he would not have got there. He cannot be absolutely bad, otherwise he would not have got there. He must have justified himself in a High Court as Chief Justice or something. So you are fairly assured that he is up to a certain standard. If so, let him continue. Otherwise the risk is greater, of pushing out a thoroughly competent man because of the age-limit, because he has attained the age of sixty. So I beg the House to accept the age-limit of 65 for Federal Court Judges that has been suggested.”[29]

46. The need for utilising the services of these fine judicial minds has been expressed by some eminent personages in recent times including the Attorney General for India[30]. Waste of talent merely because of attainment of superannuation is unacceptable in contemporary times, smacks of ageism and is against the interests of the nation.

47. As a matter of fact, it is for the legislature of the day to consider whether the age of 65 should be raised to at least 70 years, given the better life span and conditions today as compared to what existed 70 years back. Although an analysis of comparative constitutional law is far beyond the scope and ambit of the present paper, one can’t help but in the passing make a reference to the fact that in other mature common law jurisdictions there is either no retirement age[31] or higher retirement ages[32].

VI. CONCLUSION

48. The efforts of academic research are sometimes, more than any posited hypothesis, the cause of a greater epiphany, a realisation of a larger state of affairs. The dispassionate exercise of examining the subject under the constitutional, legal and moral regime, has resulted in a questioning of assumptions and a realisation that subjective assessments and half-baked information are perhaps the bane of an otherwise boisterous and functioning democracy like ours. The urge or intentions of a section of the intelligentsia to zealously crusade for certain values such as independence of the judiciary cannot be questioned and are deserving of admiration. However, at least in the instant case, it appears to have been misdirected and found wanting in substance. The words of Fazal Ali, J. in the First Judges Case[33] come to mind, which, despite much water having flown down the Yamuna both in the law on appointment of Judges and otherwise, still seems to ring a bell:

“520. There is another fact of life which, however unpleasant, cannot be denied and this is that precious little are our masses or litigants concerned with which Judge is appointed or not appointed or which one is continued or not continued. The high sounding concept of independence of judiciary or primacy of one or the other of the constitutional functionaries or the mode of effective consultation are matters of academic interest in which our masses are least interested. On the other hand, they are mainly concerned with dangerous forces at work and evils reflected in economic pressures, inflationary tendencies, gruelling poverty, emancipation of women, maintenance of law and order, food and clothing, bread and butter, and above all the serious problem of unemployment.

521. It is only a sizeable section of the intellectuals consisting of the press and the lawyers who have made a prestigious issue of the independence of judiciary. I can fully understand that lawyers or other persons directly connected with the administration of justice may have a grievance however ill-founded that improper selection of Judges or interference with the appointment of Judges strictly according to constitutional provisions may mar the institution of judiciary and therefore they may to some extent be justified in vindicating their rights. But at the same time, however biting or bitter, distasteful and diabolical it may seem to be, the fact remains that the masses in general are not at all concerned with these legal niceties and so far as administration of justice is concerned they merely want that their cases should be decided quickly by Judges who generate confidence. They are least concerned with individual Judges or the mode or manner of their appointment. Carried away by the stormy and emotional debate of the lawyers appearing for the petitioners and their egotistic slogan that independence of judiciary was in danger, this Court ought not to have broken the age-old solid and sacrosanct tradition of upholding the plea of privilege which caused serious injury to the public interest. But lo and behold! The result of the disclosure has revealed widespread dangers and ills, for anybody in the street without appreciating the niceties of law looks upon the judiciary as suspect. Did we disclose the documents to produce such disastrous results? It is difficult to construct an edifice but very easy to demolish the same. But, alas! We have demolished it and caused irreparable damage for which our future generation will never forgive us. Whether I was right in upholding the plea of privilege, or my Brothers in ordering disclosure of documents, only time will tell.”

49. The reactions and outrage on account of Justice Gogoi’s nomination to the Rajya Sabha, howsoever good intentioned, appear to have been misdirected on all counts, constitutional, legal and moral.

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*The author practices in Supreme Court, primarily in the fields of civil, commercial, and corporate laws. The author would like to express his gratitude to his professional mentors Mr Surendra Dube and Mrs Sonia Dube for their valuable inputs, besides constant guidance and inspiration in all his endeavours.

[1] Parliament has in fact prescribed further qualifications and disqualifications and exemptions thereto by law in the form of the Representation of the Peoples Act, 1951 (Act 43 of 1951) and Parliament (Prevention of Disqualification) Act, 1959 (Act 10 of 1959). Please see sub-head B Statutory Law.

[2] Ibid.

[3] Salaries and Allowances of Members of Parliament have been legislated upon and are determined in accordance with the Salary, Allowance and Pension of Members of Parliament Act, 1954 (Act 30 of 1954). 

[4] Representation of the People Act, 1951 

[5] The apparent conflict between the role of the President/Governor under Articles 102/191 and the High Court when hearing an election petition under Section 100 of the Representation of the People Act, 1951 was clarified by the Supreme Court holding that for the procedure under the parliamentary legislation was applicable to pre-election disputes while the jurisdiction of the President/Governor was to invoked in case of issues concerned disqualification incurred after election. See: Election Commission v. Saka Venkata Rao,  1953 SCR 1144 (5 Judges) (para 16); followed in Lily Thomas v. Union of India, (2013) 7 SCC 653 (para 28) and Election Commission of India v. Bajrang Bahadur Singh, (2015) 12 SCC 570 (para 21). 

[6] Parliament (Prevention of Disqualification) Act, 1959  

[7] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 ; R.S. Nayak v. AR Antulay, (1984) 2 SCC 183. 

[8] Constituent Assembly Debates, Vol. 8 on May 24, 1949. 

[9] Ibid. 

[10] Constituent Assembly Debates, Vol. 8 on May 24, 1949. 

[11] Ibid.

[12] Id

[13] Id

[14] Supra Note 7

[15] Lok Pahari v. Union of India, (2018) 16 SCC 696 (para 24); State of Kerala v. NM Thomas, (1976) 2 SCC 310 (7 Judges) (para 107) 

[16] (2006) 7 SCC 1 (5 Judges) (para 48) 

[17] Manohar S Prabhu v. Union of India, 1986 SCC OnLine Bom 35  

[18] Public Interest Foundation v. Union of India, (2019) 3 SCC 224 (5 Judges) (paras. 8, 17, 25); Shrikant v,. Vasantrao, (2006) 2 SCC 682 (3 Judges); Vijay Namdeorao Wadettiwar v. State of Maharashtra, 2019 SCC Online Bom 2100 

[19] (2014) 9 SCC 1 (5 Judges)

[20] Id., paras 62, 64, 65, 67, 74-98

[21] Election Commission v. Saka Venkata Rao,  1953 SCR 1144 (5 Judges) (para 16); followed in Lily Thomas v. Union of India, (2013) 7 SCC 653 (para 28) and Election Commission of India v. Bajrang Bahadur Singh, (2015) 12 SCC 570 (para 21); Election Commission of India v. N.G. Ranga, (1978) 4 SCC 181 (5 Judges) (paras 4, 5, 6 and 7) 

[22] Ashwani Kumar Upadhyay v. Union of India, (2019) 11 SCC 683 (para 15); Bhagwati Prasad Dixit Ghorewala v. Rajiv Gandhi, (1986) 4 SCC 78; Bhanukumar Jain v. Kamal Gupta, 2003 SCC OnLine MP 341; Obil Kyndait v. Simon Siangshai, 1995 SCC Online Gau 189. 

[23] Madhukar GE Pankakar v. Jaswant Chobbildas Rajani, (1977) 1 SCC 70 

[24] The Wire, “Ranjan Gogoi, MP, Has Another Precedent To Follow – Justice H.R. Khanna”, https://thewire.in/law/ranjan-gogoi-mp-has-another-precedent-to-follow-justice-h-r-khanna; Prabhash K. Dutta, India Today, March 18, 2020, Justice Ranjan Gogoi as Rajya Sabha MP: Law Commission Report explains what is wrong here, https://www.indiatoday.in/news-analysis/story/justice-ranjan-gogoi-as-rajya-sabha-mp-law-commission-report-explains-what-is-wrong-here-1656834-2020-03-18 (last visited on April 11, 2020)

[25] See for instance, Arghya Sengupta, The Times of India, May 8, 2019,“After the Judges retire: Time for a fresh look at sensitive judicial afternoons and evenings”, https://timesofindia.indiatimes.com/blogs/toi-edit-page/after-the-judges-retire-time-for-a-fresh-look-at-sensitive-judicial-afternoons-and-evenings/(last visited on April 11, 2020). This article was published not in the context of the present subject but generally on the question of post-retirement appointments.

[26] See Part III, Constituent Assembly Debates

[27] Law Commission of India, “14th Report on Reform of Judicial Administration” (September, 1958) , Vol. I, Chapter 1-29, 44, 45, 46, 55-57, 105-109

[28] Ibid

[29] Constituent Assembly Debates, Vol. 8, on May 24, 1949.

[30] The Economic Times, “CJI Bobde says Judges willing to work if retirement age increased”, https://economictimes.indiatimes.com/news/politics-and-nation/cji-bobde-says-judges-willing-to-work-if-retirement-age-increased/articleshow/72177571.cms?from=mdr(last visited on April 11, 2020)

[31] Art. III, S. 1 of the Constitution of the United States of America

[32] The Commonwealth, “The Appointment, Tenure and Removal of Judges under Commonwealth Principles – A Compendium and Analysis of Best Practice”, xix, 59 and 69.

[33] S.P. Gupta v. Union of India, 1981 Supp SCC 87 (paras 520 and 521)