judicial independence in South Asia

‘Has the Last Citadel Fallen?’ Post-Retirement Judicial Appointments – By KKS Perera

Though India’s Constitution and legal framework permit such appointments, the nomination sparked fierce controversy across legal circles and beyond. Retired judiciary members voiced sharp criticism, with their concerns reverberating throughout the legal community.

One former Supreme Court judge asked metaphorically: “Has the last citadel fallen?” while a retired Delhi High Court Chief Justice labeled it “quid pro quo,” suggesting transactional motives behind the appointment. All this happened when Former Chief Justice Ranjan Gogoi, who served as India’s 46th Chief Justice until his retirement on 18 November 2019, received a nomination to the Rajya Sabha four months after stepping down from the Supreme Court. In March 2020, President Ram Nath Kovind appointed him to the Upper House of Parliament based on recommendations from Prime Minister Modi’s administration.

In a more positive development, Jayantha Jayasuriya, Sri Lanka’s former 47th Chief Justice, has officially commenced his ambassadorial duties as the nation’s Permanent Representative to the United Nations. He presented credentials to UN Secretary-General António Guterres at UN headquarters in New York, marking his successful transition from judicial leadership to international diplomacy.

The Indian Chief Justice emphasised that courts must not merely deliver justice but must visibly maintain independence from political power structures. Public trust, he argued persuasively, forms the judiciary’s essential foundation and requires unwavering constitutional adherence through consistently impartial decision-making, free from external influence or expectation of reward.

Politicians, lawyers, and constitutional scholars echoed these concerns with growing intensity, arguing that regardless of legal validity, such appointments fundamentally undermine judicial independence—democracy’s cornerstone. The controversy exposed fundamental questions about appropriate boundaries between judicial and legislative branches, and whether post-retirement political positions create problematic conflicts of interest or damaging perceptions thereof for former judges.

Historical Context: Sri Lanka’s Judicial Origins and Controversies

Sri Lanka’s Chief Justice position originated from Britain’s Royal Charter of Justice in 1801, whose provisions now appear in the country’s Constitution. This charter established the Supreme Court with two distinct judicial positions: “The Chief Justice of the Supreme Court of Judicature in the Island of Ceylon” and “The Puisne Justice of the Supreme Court of Judicature in the Island of Ceylon.”

Both appointments required candidates to have practiced as barristers in England or Ireland for at least five years before nomination. This stringent qualification ensured Ceylon’s highest court would be staffed by individuals thoroughly versed in British legal traditions and judicial procedures, establishing a foundation of legal expertise that would influence the system for generations.

Codrington Edmund Carrington became the first person to hold this distinguished position, setting the precedent for what evolved into one of Sri Lanka’s most important constitutional offices under the colonial administration’s judicial framework.

The Controversy of 2013–2015

President Mahinda Rajapaksa’s installation of Mohan Peiris PC as Chief Justice on 15 January 2013 sparked intense and lasting controversy. The appointment, endorsed by Parliamentary Council, followed Shirani Bandaranayake’s disputed impeachment removal, creating a constitutional crisis that would define judicial politics for years.

Despite Peiris’s extensive and impressive credentials—former Attorney General, Senior Legal Officer to the Cabinet, and Seylan Bank Chairman—his close personal and professional ties to Rajapaksa drew widespread criticism from legal experts and civil society. Opponents viewed his elevation as presidential consolidation of judicial control, representing a dangerous precedent for executive interference in judicial independence.

Following his Supreme Court inauguration on 23 January 2013, Peiris’ tenure proved increasingly problematic and controversial. By 28 January 2015, President Maithripala Sirisena’s newly elected administration declared the appointment constitutionally invalid, arguing that Bandaranayake’s impeachment was fundamentally unlawful, creating no legitimate vacancy for Peiris to fill.

Sirisena made serious allegations, claiming that Peiris had promised favorable judicial decisions in exchange for retention in office. His subsequent removal resulted in retrospective classification as de facto chief justice rather than legitimate holder of the office, highlighting the appointment’s controversial and questionable legal foundation.

Former C J Jayasuriya Assumes UN Diplomatic Role

His distinguished legal career began in 1982, progressing systematically through various Attorney General’s Department positions before becoming Attorney General in 2016. Appointed President’s Counsel in 2012, he served as Trial Attorney at UN Criminal Tribunals for Yugoslavia and Rwanda, bringing exceptional international legal expertise and credibility to his diplomatic role.

At a UK Supreme Court roundtable, Chief Justice BR Gavai addressed judicial independence concerns, revealing that he and Supreme Court colleagues have committed to rejecting government positions after retirement. This pledge aims to eliminate perceptions that judicial rulings might be swayed by expectations of future political appointments.

Gavai’s stance contrasts sharply with former Indian CJ Ranjan Gogoi’s controversial decision to join Rajya Sabha merely 16 weeks post-retirement, which drew widespread criticism. The Modi administration has previously appointed retired chief justices to gubernatorial roles, raising questions about judicial-executive boundaries.

India’s Constitutional Framework for Retired Judges

India’s Constitution establishes specific and detailed restrictions on former judges while maintaining necessary judicial administrative flexibility. Article 124(7) categorically prevents retired Supreme Court justices from practicing before any Indian court or authority, preserving judicial independence and preventing potential conflicts of interest that could compromise the system’s integrity.

Significantly, the Constitution contains no explicit prohibition on post-retirement governmental appointments for former judges, creating constitutional silence that has enabled controversial political appointments like Gogoi’s. This gap in explicit guidance has become a focal point for constitutional scholars and reform advocates.

Article 128 provides essential administrative flexibility, empowering the Chief Justice, with presidential consent, to recall qualified retired judges to serve temporarily as Supreme Court justices when needed, effectively addressing workload pressures while maintaining personnel standards and judicial continuity.

The Ongoing Constitutional Debate

While constitutional provisions lack explicit prohibition against retired judges accepting governmental positions, this practice generates intense and ongoing debate regarding judicial independence and institutional integrity.

Supporting Arguments: Advocates emphasise utilising judicial expertise for governance, arguing that seasoned jurists bring valuable legal understanding to policy-making roles, maintaining talent pools for effective administration.

Opposition Concerns: Critics warn that such appointments create quid pro quo perceptions, potentially compromising judicial independence when judges anticipate future governmental roles. This practice may generate conflicts of interest, undermining public trust in judicial impartiality.

Ethical Framework: The Supreme Court’s 1997 Restatement of Values of Judicial Life emphasises impartiality and avoiding conflicts of interest. However, critics view these appointments as systematic attempts to weaken judicial authority by enticing judges with political prospects.

A Supreme CC

Instead of making controversial and divisive public statements, retired Chief Justices and Supreme Court judges should be assigned a formal role within a constitutionally established Supreme Constitutional Council comprising seven or nine members. Working in consultation with the existing Constitutional Council, this body would be responsible for continuously reviewing the Constitution and providing independent, authoritative advice to the Executive and Parliament on necessary amendments. Such a mechanism would help ensure that constitutional changes are legally sound and broadly acceptable to both the legislature and the Supreme Court—without resorting to the burdensome process of a two-thirds majority, a public referendum, and separate judicial sanction. It would also curb the abuse of power by politicians seeking to alter the Constitution for personal or political gain and protect the public from ill-advised referendums, such as the one in 1982 that extended the term of the incumbent government.