Independence of any office is it's functional independence. The
independence of judiciary is preserved when the judiciary is free to decide the
lis before it without any extraneous pressures or considerations. And such
independence starts at the starting point of taking oath of office. What
happens to the person before appointment is not a consideration.
The essential feature of human life is that it's forward
looking. Nobody drives a vehicle looking into the rear view mirror. The life is
essentially forward looking. The rear view mirror is only an indicator and the
vehicle cannot be driven by looking only to it. Once a person is appointed and
takes oath of office and secrecy, his functional independence starts from that
point of time. If executive sends any direction to decide a case or litigation
in any particular manner, it is essentially an interference with judicial
process. But appointment to the judiciary is essentially an executive action,
to which judiciary shall desist from interfering. If it interferes, unduly,
then it is judicial interference with executive action, against the doctrine of
separation of power, As per the doctrine of separation of powers, the executive
powers vests with the political executive, the law making powers with the
parliament and the adjudicative powers with the judiciary. If executive enters
in the judicial authority, it will be against the said doctrine. It will result
into the consolidation of powers with the executive. But, if the judiciary
encroaches into the powers of executive, what will be the result? The result is
the same: Consolidation of powers. Only the banner differs. One is under the
banner of executive and the other under the banner of judiciary. But in either
case, the powers will be consolidated with a group of people, under either of
the banner. If the judiciary encroaches into the lawmaking powers of
parliament, then also amounts to the same result. As the separation of power is
the basic structure of the constitution, as laid down by Keshavananda Bararti
case, the encroachment of judiciary into either executive powers or to the
parliamentary powers of law making or constituent powers, it will be destroying
the basic structure of the constitution. SO the very effect and consequence of
either judiciary encroaching into executive or parliamentary powers or
executive encroaching into the judicial functions are one and the same, being
consolidation of powers with one organ, which is antithesis to separation of
powers.
Now, coming back into the effect of appointing authority upon
independence of functioning, if the judiciary says, just because it's is
appointed by the executive, it lost all its functional independence, then it is
akin to personal surrender. The pay, perks, allowances, tenure and all the
conditions of service are protected with respect to a judge of higher judiciary
to effectively protect the functional independence. That is the same case with
respect to Chief Election Commission, Comptroller and Auditor General and Union
Public Service Commission as well. Even president is protected so far his/her
functional independence is concerned. Except president of India, all the other
constitutional authorities mentioned supra are appointed by the executive. Even
the judges, before 1993 were appointed by the executive under consultation with
CJI and other such judges, as the executive may deem fit. Taking into
consideration, the functional independence of all these constitutional organs,
the executive being their appointing authority was never a hindrance for them
to be functionally independent.
Even though J.V.R.Krishna Iyer was appointed by Mrs.Indira
Gandhi Government, as Supreme Court judge, he did not found it inappropriate to
refuse an unconditional stay in her favour. So was the case of Allahabad High
Court judge, J. Jagmohanlal Sinha. So,
the executive appointment of a judge in a higher judiciary is not a reason for
him to lose functional independence. But, the reality is otherwise. As we
discussed above, the essential nature of human being is forward looking and not
rear view mirror looking. So the very essence of independence of a person
depends upon his present and future and not on his past. Hence the present of a
judge, president, CAG, CEC and UPSC member are protected by way of fixed terms
coupled with protection of service conditions. The appointments of CAG, UPSC,
Election Commission, CVC and other constitutional Authorities are made by
President of India in accordance of article 74. Then where is the doubt in case
of Judicial Appointments? All are equal
in status with the Supreme Court in Independence, Status and Function. [1]
But in case of CAG and CEC, the future is also protected from
being lured by the executive. That gives them real teeth to act independently
and impartially, especially while dealing with political executive. There is a
cooling period of 6 years for the CEC and CAG to take any Government
appointments, post-retirement. That prevents an individual holding such a high
constitutional post from being lured by a post retirement appointment by
executive. As of now, immediately after the retirement, some judges are
appointed by the executive to some pre reserved designations or to some
instantly created commissions. It remains to be the luring of the sitting
judges, to use his present appointment and powers to secure future office of
profit. When the executive is the major litigant, and most of the political
authorities have their personal litigation also running in courts, this is an
easy task for the incumbent judges.
Such a cooling period for the judges of higher
judiciary is also essential for protecting their functional independence while
in office, so that such judges will not be intimidated by post retirement
appointment by executive to protect their personal interest. It will give the
much needed cooling time for a judge to become a true statesman and time to
read and understand the higher levels of statesmanship, before being assigned
with any other responsibility. Hence to protect the independence of judiciary
at it's functional level, instead of agitating at the way of appointments, the
core subject of protection from post retirement appointments shall be addressed
meaningfully. At least a cooling period of 6 years must be there before any
such appointments, if any is accomplished. The present temptation of securing a
post retirement appointment through corrupt practices, while in office and
protect such corruption through the post retirement offices will be effectively
checked. It will further curb the political nexus of judiciary.
[1] Article 148(1) (Comptroller and Auditor General of India) To
be removed as per the procedure for the removal of the Supreme Court of India.
Article 316(1)
(Public Service Commission).
Removal and suspension in accordance with Article 317 of the COI.
324 (2) (Election Commission) Chief Election
Commissioner to be removed as per the procedure for the removal of the Judge of Supreme Court of India.
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