New Delhi: The appointment of former Supreme Court judge S Abdul Nazeer as the governor of Andhra Pradesh, within 40 days of his retirement from the top court, on Sunday drew mixed reactions. While some former top court judges maintained that there was nothing wrong in taking up a gubernatorial job post-retirement, the Congress opposed the government’s decision alleging that it is being made into a tradition.
Justice Nazeer was part of the five-judge bench that decided the disputed Ram Janmabhoomi case in November 2019 handing over the Ayodhya land to the Hindu party. Justice Nazeer was the lone Muslim face on the Ayodhya bench presided by then chief justice of India (CJI) Ranjan Gogoi.
Justice Nazeer retired from the Supreme Court on January 4. Close to his retirement, Justice Nazeer headed the bench that upheld the Centre’s demonetisation policy of November 2016 and was also part of a constitution bench that held no further restriction can be added to the right to free speech under Article 19(1)(a) of the Constitution.
The government appointed six new faces, including Justice Nazeer, as governors on Sunday. While the appointment of a former top court judge as a governor is not unprecedented, it is the timing of his appointment that has raised eyebrows.
Pointing out that cooling-off period is a self-imposed restriction practiced by judges, former CJI KG Balakrishnan said: “There cannot be a strict rule on cooling-off period as so many tribunals have to be filled up. Nobody would be available in such a scenario. This rule is a self-imposed restriction as people may attribute there was some alliance or friendship when the judge was on the decision-making side.”
On the present appointment, Justice Balakrishnan said, “There is nothing wrong in being a governor. Such announcements come once in a while. If it becomes a regular feature, only then it becomes suspicious.”
Former Supreme Court judge, Justice Indira Banerjee said taking up a post-retirement assignment “depends on the judge and the nature of appointment”. “There are some posts for which the eligibility is to have a retired Supreme Court or high court judge. For instance, heads of National Company Law Tribunal, National Human Rights Commission, or the office of Lokpal require a former Supreme Court judge,” she said. “For such posts, cooling-off period may not be strictly applicable in the interest of disposal of cases. But otherwise, for any other appointment there has to be a cooling off period.”
The Congress, meanwhile, opposed the government’s decision. Addressing a press conference in Delhi, senior Congress leader and spokesperson Abhishek Singhvi said: “One of the BJP tall leaders sadly no more with us, Arun Jaitley, on September 5, 2013 in the House and several times outside stated that ‘the desire of a post-retirement job influences pre-retirement judgements. It is a threat to the independence of the judiciary’.”
Ha added: “On the basis of principles and in a definite manner, we oppose it. This is being made into a tradition, which is completely wrong.”
To be sure, there is no provision in law restricting a retired top court judge from holding the post of a governor. Article 124(7) of the Constitution of India provides that a retired Supreme Court judge cannot “plead or act in any court or before any authority within the territory of India”. This provision restricts post-retirement appointments in judiciary itself, but not to posts of the President, Governor, Member of Parliament, etc.
BJP spokesperson Anil Baluni said the Congress has a habit of politicising every issue, and it was unfortunate that the opposition party is doing so with the appointment of governors also. “Former judges have been appointed to different positions countless times in the past. Our Constitution also says nothing against post-retirement appointment of judges,” Baluni said.