The Third Leg Must Stand Alone: Why Justice Ujjal Bhuyan Says an Ex-CJI in the Rajya Sabha Breaks the Constitution

ABSTRACT This analysis examines a set of extrajudicial observations by Justice Ujjal Bhuyan of the Supreme Court of India concerning the constitutional principle of the separation of powers. Speaking publicly rather than from the Bench, Justice Bhuyan described the idea that a former Chief Justice of India might join the Rajya Sabha to "bridge the gap" between the judiciary and the executive as "fundamentally wrong" and "completely wrong." His central image was that of a three-legged stool: the three legs — legislature, executive, and judiciary — hold the constitutional structure upright only so long as they remain apart. If two legs converge, balance is lost and the stool collapses. This piece situates those remarks within India's constitutional design, traces the doctrinal foundations of judicial independence from Kesavananda Bharati onward, evaluates the ethical anxieties around post-retirement appointments, and assesses why a judge's willingness to voice such concerns while still in office carries unusual institutional weight. The analysis argues that although these are not binding pronouncements, they crystallise a live and consequential debate about credibility, public trust, and the invisible boundaries that keep the third leg standing on its own. TABLE OF CONTENTS Introduction and Context What Justice Bhuyan Actually Said The Constitutional Architecture of Separation of Powers Judicial Independence as a Basic Structure The Post-Retirement Question and Public Perception Why an In-Service Judge Speaking Out Matters Counter-Perspectives and the Limits of the Argument Conclusion and Takeaways Key Case Laws and Constitutional Provisions Cited INTRODUCTION AND CONTEXT The independence of the judiciary is not a slogan printed on the walls of a courtroom; it is the working assumption on which every litigant places their trust when they walk through the doors of a court. Justice Ujjal Bhuyan's recent public interventions revive an old anxiety in a fresh and vivid form. The occasion for his sharpest remark was the notion, floated in public discourse, that a retired Chief Justice of India might enter the Rajya Sabha in order to "bridge the gap" between the judiciary and the executive. To Justice Bhuyan, the very framing of that ambition betrays a misunderstanding of what the Constitution asks of its three great institutions. The gap, in his reading, is not a defect to be bridged but a safeguard to be preserved. This debate is not new — the public conversation around former CJI Ranjan Gogoi's nomination to the Rajya Sabha in 2020 raised precisely these questions — but a sitting Supreme Court judge articulating it so plainly gives the discussion a rare candour. WHAT JUSTICE BHUYAN ACTUALLY SAID The words matter, so they deserve to be quoted with care. Justice Bhuyan used the analogy of a three-legged stool to explain the delicate equilibrium among the legislature, the executive, and the judiciary. "If we have two legs at one place, the stool will fall apart," he observed, adding that this is "the fundamental principle." Applying the image directly to the question at hand, he said that when a former Chief Justice of India declares an intention to enter the Rajya Sabha to bridge the gap between the two branches, "it is fundamentally wrong. Completely wrong. It goes against the" grain of the separation of powers. The strength of the analogy lies in its simplicity: a stool does not fall because a leg is too strong; it falls because two legs stop keeping their distance. The independence of the judiciary, on this account, is a matter of geometry as much as of law — a question of where each institution stands in relation to the others. In a separate address at the ILS Law College, Pune, he pressed the same theme, warning that "if we lose our credibility, nothing will be left of the judiciary." THE CONSTITUTIONAL ARCHITECTURE OF SEPARATION OF POWERS India does not follow a rigid, American-style separation of powers, but the doctrine is nonetheless woven deeply into the constitutional fabric. The framers distributed functions among the three organs while allowing for a system of checks and balances. The foundational recognition of the doctrine appears in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, where the Supreme Court held that separation of powers forms part of the basic structure of the Constitution, beyond the reach of even a constitutional amendment. This was reinforced in Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1, where the Court struck down an attempt by the legislature to adjudicate an election dispute, treating such a usurpation of judicial function as a violation of the basic structure. Justice Bhuyan's stool is, in effect, a lay person's version of this doctrine: the legislature makes law, the executive administers it, and the judiciary interprets and enforces it, and each must resist the temptation to occupy the ground reserved for another. JUDICIAL INDEPENDENCE AS A BASIC STRUCTURE The independence of the judiciary is not merely a convention; it has been elevated to the status of a non-negotiable constitutional value. In S.P. Gupta v. Union of India (1981) Supp SCC 87 (the First Judges Case) and later in Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441 (the Second Judges Case), the Court progressively insulated appointments and transfers from executive dominance, giving primacy to the opinion of the Chief Justice of India. In Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1 (the NJAC judgment), the Court struck down the Ninety-ninth Constitutional Amendment and the National Judicial Appointments Commission precisely because it perceived a threat to judicial independence, which it reaffirmed as part of the basic structure. Read against this backdrop, Justice Bhuyan's concern is doctrinally orthodox rather than radical. When he cautions against the executive's role in the transfer of High Court judges — obliquely referencing the transfer episode involving Justice Atul Sreedharan — he is invoking the same protective logic that animates the Second Judges Case and the NJAC ruling. The relevant constitutional anchors here are Article 50 (separation of the judiciary from the executive), Article 124 and Article 217 (appointment of judges), and Article 222 (transfer of High Court judges). THE POST-RETIREMENT QUESTION AND PUBLIC PERCEPTION The heart of the controversy is not what a former judge does in private life but the message a post-retirement political appointment sends to the public. A judge's authority rests on a currency more fragile than money or force — it rests on trust. As Alexander Hamilton famously noted, the judiciary has "neither the sword nor the purse," a point Justice Bhuyan himself echoed when he said courts do not need a platoon of the CRPF to protect them; their credibility is their armour. The worry is one of appearances and incentives: if a sitting judge can reasonably anticipate a coveted nomination after retirement, the fear is that the shadow of that reward might, consciously or not, colour decisions delivered from the Bench. This is the concern that animated the widespread criticism of the 2020 Rajya Sabha nomination of a former CJI, where commentators argued that the acceptance "diminished the moral stature of the judiciary" in public perception. Justice Bhuyan's contribution is to reframe the issue away from any individual and toward a structural principle: the problem is not the person but the precedent. WHY AN IN-SERVICE JUDGE SPEAKING OUT MATTERS There is a familiar and somewhat cynical pattern in Indian public life whereby judges discover their candour only after they demit office, when their observations can no longer cost them anything. What distinguishes Justice Bhuyan's intervention is that it came from a serving judge of the Supreme Court, spoken openly and on the record while he remains part of the very system he is critiquing. That timing lends the remarks a moral seriousness that post-retirement commentary often lacks. It also illustrates the point he is making: a truly independent judiciary is one whose members feel free to defend its independence without fear of consequence. His invocation of the first Chief Justice of India, Harilal J. Kania — who exhorted that the Court must "stand aloof and firm from party politics," remaining "unconcerned by the changes in the government," with "goodwill and sympathy for all, but allied to none" — situates his warning within the founding ethic of the institution rather than any contemporary partisan quarrel. COUNTER-PERSPECTIVES AND THE LIMITS OF THE ARGUMENT Fairness requires acknowledging the case that defenders of post-retirement appointments would make. They would argue that a Rajya Sabha seat, particularly a nominated one under Article 80, is meant to bring distinguished expertise — including legal expertise — into the legislative process, and that a former judge's constitutional wisdom is a national asset that should not be forced into silence. They might add that many democracies permit former judges to serve in public bodies, commissions, and tribunals, and that a blanket suspicion of all post-retirement roles is unrealistic and even unfair to individuals who have given decades of honest service. They could point out that these were extrajudicial remarks, not a binding ruling, and that a judge's personal philosophy should not harden into a constitutional prohibition without legislative debate. These are serious points. Yet the counter to them is that the specific rationale of "bridging the gap" is precisely what makes this instance troubling — because it presupposes that the two branches ought to be brought closer, when the constitutional design deliberately keeps them apart. A cooling-off period or a bright-line rule against politically appointed roles for a fixed number of years after retirement is the reform most commentators propose to reconcile these competing concerns. CONCLUSION AND TAKEAWAYS Justice Bhuyan has not delivered a judgment, and nothing he said binds any court. But some of the most durable constitutional lessons arrive not through the formal machinery of litigation but through the plain speech of those who understand the institution from within. His three-legged stool is likely to outlast the immediate controversy because it captures, in a single image, why judicial independence is structural rather than sentimental. The gap between the judiciary and the executive is not a wound to be healed; it is the space in which liberty breathes. Whether the answer lies in a statutory cooling-off period, a self-imposed convention, or simply a renewed culture of restraint among retiring judges, the debate Justice Bhuyan has reignited is one the Indian republic cannot afford to ignore. The stool stands only while its legs keep their distance — and the moment they meet, it is not the stool alone that falls, but the trust that rests upon it. KEY CASE LAWS AND CONSTITUTIONAL PROVISIONS CITED Case laws referenced (highlighted): Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 — separation of powers as part of the basic structure. Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1 — legislature cannot usurp judicial function. S.P. Gupta v. Union of India (1981) Supp SCC 87 — First Judges Case. Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441 — Second Judges Case; primacy of the CJI. Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1 — NJAC judgment; judicial independence reaffirmed as basic structure. Constitutional provisions referenced (highlighted): Article 50 — separation of the judiciary from the executive. Article 80 — nomination of members to the Rajya Sabha. Article 124 — establishment and appointment of Supreme Court judges. Article 217 — appointment of High Court judges. Article 222 — transfer of a judge from one High Court to another.