Today’s Indian Express has an editorial that is sharply critical of this action. Here is how the Express sees the issue:
Constitutional authorities like the Election Commission and the Comptroller and Auditor General perform a vital oversight duty in our democracy, and it is crucial that those in charge of them stay delinked from the political process in order to avoid any suspicion of slant or bias. Without casting any aspersions on Gill, we worry about the precedent set by the UPA four years after the Congress brought him into the Rajya Sabha. As India moves from an interventionist state to a regulatory one, we have turned our faith towards a reformist judiciary, presidency and the EC. Even as confidence in the cabinet and Parliament eroded, the EC has enjoyed immense public credibility, with its constitutionally guaranteed independence and its pivotal role in our democracy. In fact, it is the public perception of the EC’s impartiality that has enhanced the legislature’s credibility.
Against such a background, the Express editorial raises the following question:
How can we believe that bodies like the EC will remain fiercely independent if those in charge of them can go on to join the very fray they are meant to oversee?
Reading this editorial, I was reminded of similar concerns raised when former members of the higher judiciary enter the political fray, an issue that was alluded to in the comments section of this recent post.
Interestingly enough, this is the precise connection that Harish Khare draws in his column in today’s Hindu, where his principal focus is also on MS Gill’s induction into the Union Cabinet. After expressing concerns similar to those outlined in the Express editorial above, Khare asserts:
Understandably, the post-retirement behaviour of constitutional functionaries has increasingly come under close scrutiny. It is rather elementary. A government — and that means the ruling party of the day — can easily suborn a constitutional functionary by dangling the carrot of a post-retirement “accommodation.” In some cases, the expectation is written in stone. For instance, the Constitution specifically proscribes in Article 148(4) the Comptroller and Auditor-General of India from accepting any office under the Government of India or a State government “after he has ceased to hold his office.”
A somewhat similar principle is invoked in the case of the higher judiciary. Article 124(7) says Supreme Court judges, after retirement, shall not “plead or act in any court or before any authority within the territory of India.” As the judiciary has asserted itself aggressively against a weak executive and a stalemated legislature, democratic opinion has come to expect that once they leave the bench the judges would be able to resist the temptations any executive can offer. Conventions about post-retirement judicial behaviour are far from settled. A former Chief Justice, J.S. Verma, has asked for a debate on the post-bench activities of the judges.
Khare’s solution to this issue is set out in the final part of his column:
Constitutional functionaries are like monks, making lifelong commitments of moral virtue and personal self-negation. Those who seek to serve the nation in high positions owe it to themselves — as also to the democratic expectation — to remain above the fray. Surely, there must be many ways of contributing to and enriching public life without cutting a deal with a political operative. At stake are the reputation, credibility and popular acceptability of these very institutions.
Khare’s proscription has the advantage of being clear and straightforward. Yet, I remain unsure whether it is necessarily the most pragmatic measure at a time when our judiciary is struggling to attract the best legal talent to the bench. What is required, perhaps, is creative thinking on what Khare calls the “many ways of contributing to and enriching public life without cutting a deal with a political operative.” I wonder what others might have to say in response to Khare's views on this issue.