Judges in Legislature: Can the Gap be Bridged Without Hurting the Separation?

By: Vini Srivastava


The recent appointment of ex-CJI Justice Ranjan Gogoi to the Rajya Sabha has seen legal luminaries expressing concerns over the independence of the judiciary and the dilution of the doctrine of separation of powers. Amongst allegations of a quid pro quo action, the Union Law Minister has stated that the judge’s great experience will add to the standard of debate in Rajya Sabha. A PIL has been filed challenging this appointment as one that raises doubts on the credibility of the judgments delivered under his headship.

Contrary to this, the Bar Council of India issued a statement that they saw the nomination as a ‘bridge between the judiciary and the legislature’ and an ‘ideal opportunity’ to portray views of the judicial branch before the legislative and vice-versa. Similarly, Justice Gogoi expressed his strong conviction that the legislature and the judiciary must at some point of time work together for nation-building. Do these statements carry merit? In other words, can there really be a set-up where elements from the judiciary and the legislature may intermingle to bridge the gap in a democratic federal state boasting of separation of powers? 

While the larger question of whether retired judges should be able to take up after retirement jobs still remains, it has interestingly opened another door to the understanding of the separation doctrine. I shall, in this post, focus upon judges’ participation in the legislative process and how far it is justified vis-à-vis the separation doctrine.  

IS THERE A NEED FOR JUDGES IN THE PARLIAMENT?

There can be quite a few reasons for having judges in Parliament post-retirement; the analysis of the prominent ones is as follows.

‘Law’ making and better policy decisions 

The nomination of J. Gogoi is seen by some as quality legal expertise in the Upper House. It is also interesting to note that he has been appointed to a place vacated by an eminent lawyer in the Supreme Court. It is evident that the legislature has been a place adorned by lawyers since the pre-constitutional period. Great legal proponents such as Dr. B.R. Ambedkar, B.N. Rau, J.L. Nehru, etc. are those behind our constitution-making process. Our legislatures have never been short of people representing the legal profession. 

Besides this, there are institutions designed to help the Parliament in informed law-making. We have the Law Commission where judges, jurists and scholars work day in and out to bring forth reports on important issues and give various recommendations to the Government from time to time. We have seen in the past how Judicial committees and commissions like the Justice V.S. Malimath and the Justice J.S. Verma committees, have charted the course of the legislative boat for important reforms in the criminal justice system. Even the Parliamentary Committees call upon a range of stakeholders including judicial or quasi-judicial bodies for their insights before finalising a report. Nevertheless, these institutions recommend lawmakers in a non-binding manner by staying outside the boundaries of the Parliament. 

 On the other hand, when a judge is given a place within the boundaries of the legislature his opinions weigh more than mere recommendations as these opinions are subjected to the democratic scrutiny of the House. Every member of the legislature has an equal opportunity to speak in the Parliament subject to the rules of each House. This kind of privilege is all-the-more beneficial for supposedly apolitical nominated members who can freely put forth their views sans political prejudice. Nominated members have been found to consider it their responsibility not only to make a professional contribution to the debates but also represent the special interests of their spheres.

Minimizing Deadlocks  

Numerous judgments challenging acts of Legislature in the Apex Court have been nullified later by popular sentiment of the House, thereby dissipating important time and energy. The Legislature needs a constant reminder of the basic structure of our Constitution while deliberating on a law. On the flip side, even the Judiciary is accused of judicial overreach and creating pressure on the Governments to formulate specific laws. The Supreme Court is the sole interpreter of the Constitution and the supremacy of the Constitution brings with it the consequence that neither Parliament nor the Government is supreme. Hence, the presence of a judicial member may promote this concept of constitutionalism. 

Separation of Powers

The Separation of Powers (hereinafter ‘SOP’), in the present times, implies a system of checks and balances that the three branches-Executive, Legislature and, Judiciary keep on each other, eliminating scope for despotism. Unlike the US Constitution where the first three articles draw a clear distinction between the functions of the three branches, Article 50 of the Indian Constitution enshrines this principle by separating the judiciary from the executive in the public services of the State. 

In a Parliamentary democracy like India, strict separation between the Legislature and the Executive is not possible since the Cabinet forms the part of the Parliament. Our Constitution makers adopted the British Parliamentary form of government where the Monarchy, PM and his Council of Ministers, which form part of the Parliament, work closely. In the UK, until 2005, the Lords of Appeal in Ordinary (the Law Lords) sat in the legislature as well as acting as the highest appeal court in the UK. This practice of judges sitting simultaneously in the legislature as well as for deciding cases over the laws in whose formulation they implicitly participated, was not seen in a bad light. However, the Constitutional Reform Act, 2005 created a separate Supreme Court in place of the judicial committee in the House of Lords, separating out the judicial role from the upper House in order to conform to the requirements of SOP in the European Union Constitution. This has made a difference in the day-to-day management of the judiciary, the way judges are appointed and the way complaints are dealt with, to make the judiciary truly independent and accountable. 

The Lord CJ of England and Wales, Lord Thomas in his lecture post the 2005 amendment, mentioned, “The independence of the judiciary, far from precluding relationships with the other two branches of the state, requires engagement with both.” He identified two areas: one, the existing role of the Courts of interpreting the Constitution and directing the Parliament on what to do; and two, direct judicial engagement in strengthening access to justice in order to aid in improvising the law. He further observed that greater engagement did not erode the SOP but caution should be exercised. This cautionary approach could well be considered while deciding upon the separation with regard to the judiciary and the legislature in India as well as making the judiciary more accountable. 

ADOPTING A BALANCED APPROACH 

In order to cause minimal disturbance in the SOP even while nominating judges to the Upper House, a cautionary approach should be taken. One such approach is introducing a cooling-off period for post-retirement jobs of judges. Cooling-off period gives sufficient time between the retirement and the appointment of the judge to any post so that the bait is removed from the fishing rod and non-partisanship is ensured. Eminent politicians and judges too have suggested having at least a two-year cooling-off period. However, I propose a cooling-off period of six years so that the possibility to gauge prospects with the future Government of the country is diminished from the minds of the Lordships.

Another method of ensuring a fair interaction between the Judiciary and the Legislature is participation of judges in the Parliamentary committees as is the case with the UK Parliament at Westminster, where the judiciary regularly gives evidence to parliamentary committees. Moreover, Meghnad Desai in his article suggests the adoption of the idea of judges sitting in the Upper House of the Legislature upon retirement, as set out in the British Constitution. If our retiring judges are automatically nominated to the Upper House there would be no question of patronising them. Nominated members do not even participate as a voter in a Presidential election. However, this would require a constitutional amendment. 

Alternatively, an amendment to the Constitution can be made by incorporating a provision similar to Articles 148 or 319, which restricts post-retirement appointments of CAG and UPSC Chairman respectively. 

CONCLUSION 

The current times should see the Judiciary, Legislature and the Executive as mutually interdependent watchdogs. A constantly growing perspective regarding the participation of Judiciary in various spheres may benefit the system. In ‘Reflections of a Retired Judge’, Justice Z M Yacoob writes on the independence of the Judiciary, 

In effect, judges universally have almost always been required to be independent and impartial and to judge without fear, favour or prejudice. There is a tendency to equate or confuse independence and impartiality with concepts of absolute objectivity, neutrality and isolation…..we judge human beings, an acute awareness and understanding of the human condition are essential. This understanding and awareness can ordinarily be enhanced by human experience and interaction. I would say that limited human interaction and the consequent limited awareness and understanding of the human condition are not helpful to the judging process.

Indeed, the independence of the judiciary should be preserved as part of the basic structure of our Constitution while maintaining a level-headed interaction. Besides the existing sixteen point charter for judges’ conduct, a Code of Conduct for Judges of the Apex Court can be formalised, taking a cue from contemporary jurisdictions like the US, and extended for life. By observing certain safeguards, efforts can be made to bridge the gap between the judiciary and the legislature without hurting the separation doctrine.


(Vini is currently a law undergraduate at Dr. Ram Manohar Lohiya National Law University, Lucknow. She may be contacted at vini.srivastava.19@gmail.com.)

Cite as: Vini Srivastava, ‘Judges in Legislature: Can the Gap be Bridged Without Hurting the Separation?’ (The RMLNLU Law Review Blog, 17 June 2020) <https://rmlnlulawreview.com/2020/06/17/judges-in-legislature-can-the-gap-be-bridged-without-hurting-the-separation> date of access.

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