Post Tenure Engagement of Retired Judges

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Editorial Note

This article was originally published on 29 July 2020 and has been revised and updated as of today. The revision retains the original analytical framework but incorporates the updated contextual relevance in light of evolving jurisprudence on judicial independence, separation of powers, and institutional accountability. Certain sections have been refined for clarity, coherence, and improved academic presentation, without altering the substantive core argument advanced in the original version.

Abstract

Independence of the judicial system is an indispensable feature of the Indian judiciary, which empowers it to function ceaselessly. The insulation of the judiciary from the legislative and executive ensures the smooth functioning of the rule of law and the absence of arbitrariness. Judicial independence empowers people to counter injustice and oppression by making them feel confident that the judiciary exists on their behalf to protect them. It wouldn’t be wrong to say that faith and confidence are the backbone of the whole judicial system. Post-retirement engagement of judges with government bodies is widely recognised as a threat to judicial independence and people’s faith in the judiciary. Recently, the nomination of Ranjan Gogoi again unearthed the debate over its legitimacy.

In light of the above facts, the author, in his article, aimed to address the key issues and propose solutions. The author has used a doctrinal method to research various aspects, such as the origin or evolution of the issue, the impact of post-retirement on judicial independence, and comparative analysis with common-law countries. At last, the author has suggested some measures which will be advantageous in resolving the issue.

Introduction

In the modern era, people perceive the court as a temple of justice, and judges are recognised as the representatives of the god of that temple; perhaps that’s why they are addressed as lordships or ladyships. The sole reason for all this reverence and homage is people's faith in the justice of their judicial god. They have trust that they will get justice and will not be subject to discrimination. Trust and faith of people are the foundation of every judicial system, if, god forbid, people lose their trust in the judiciary than no one can save the whole set-up to collapse. Lord Chief Justice Hewart’s well-known dictum “Justice should not only be done, but should manifestly and undoubtedly be seen to be done” [1] is a cardinal principle of the administration of justice. The Indian judicial system also functions on following the same principle. It’s the duty of every judge not to let people lose their confidence and trust in the judiciary. Justice Shah stated in an event that,

People have put and reposed faith in the courts, judiciary and the justice delivery system. Today, people have faith and trust mainly/only in the judiciary. They come with high hopes. They come to the court, considering it a “Temple of Justice”. Therefore, it is the duty of the judiciary to rise to the occasion and see to it that the faith and trust of the people in the judiciary are not shaken.

People trust that the honourable judges will render unbiased judgment; even the ruling government cannot influence their impartial adjudication. In every democratic country, each and every authority has limited power, and no one has the arbitrary power to go beyond the pre-specified limit. Judicial independence is the principle that the judiciary should be politically insulated from the legislative and executive powers. A noted USA president, Andrew Jackson, has said [2],

All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.

The Nomination of former Chief Justice Ranjan Gogoi, who delivered several landmark judgments, including the Ram Janambhoomi dispute, in the last year of his retirement, stirred up a new controversy as many people have started speculating that his pre-retirement judgments were influenced by his post-retirement nomination to the Rajya Sabha. Post-retirement employment of judges has always been a controversial topic because it increases the possibility of temptation in the judiciary. An intense debate was held in the constituent assembly while framing provisions on the post-retirement employment of judges, but since the situation was different from the status quo, appropriate measures were not taken at that time.

In the latter part of this article, the historical aspect of post-retirement appointments of judges, their impact on judicial independence, a comparative analysis with the USA and the UK, and subsequent measures are suggested to help address the issue harmoniously.

Origin and Evolution

During the career of Judges, many carrots are held out to deflect judicial performance from the path of rectitude. Judicial afternoons and evenings are sensitive phases, the incumbent being bothered about post-retiral prospects. The Executive plays upon this weakness to bend the integrity or buy the partiality of the elderly brethren.

— Justice V. R. Krishna Iyer, former judge, Supreme Court of India [3]

The Constitution of India contains certain provisions regarding post-tenure employment of retired Supreme Court and high court judges under Articles 124(7) and 200. Even a bare reading of any one of these articles would present the intention of the constituent assembly; the basic intention was to prevent the temptation of adjudication as post-retirement practice at the bar would may result in a biased decree by a colleague judge. Although none of the constitutional articles contains a provision regarding the position conferred by the government on retirees. It could be termed as a constitutional oversight of the constituent assembly. Despite an enthralling debate over this subject among the members of the constituent assembly, they failed to enact a curative provision. Many people, such as KT Shah, HV Kamath, K Santhanam, M.A Ayyangar, Naziruddin Ahmad, and Jaspat Roy Kapoor, in the constituent assembly supported the amendment brought by P.K Sen to restrict post-retirement employment of judges; maybe they had foreseen its impact on the independence of the judiciary.

Mr. P.K Sen had tabled an amendment for the inclusion of Article 103A among the members of constituent assembly and he said that under the article it was mentioned that whoever was holding or had hold position of judge at supreme court would not be eligible to appointment at any remunerative position under central or any state government other than the CJ of India or CJ of High court, there was an exception that with the due consent of chief justice of India president could depute any judge of Supreme court for any temporary duty.

Mr. Sen had emphasised “the office of emolument under the government” as the government could impact the pre-retirement judgment of judges by alluring judges with post-retirement pecuniary positions. He expressed that a retired judge would not be engaged in any office of profit under the government or its other organs. It is essential to prevent judges from aligning with the government; such alignment with political parties would increase and be unfavourable to the independence of the judiciary. [4]

An eminent lawyer and economist, K.T. Shah, had also come in favour of an amendment to prevent judges from taking any position during their tenure or even after retirement. He suggested that a constitutional prohibition should be laid down against the post-retirement employment of judges in any executive position. His point was that if there were no complete prohibition, then by providing a judge greater emolument or a more prestigious position, the government could influence his judgment. [5]

Jaspat Roy Kapoor was also against the appointment of retired judges to any remunerative position in the central or state government. He had considered the benefits of judges’ wisdom and capability, which could be utilised by the state; and he had suggested that a judge could be open to provide services to the state or central government, but no further emoluments should be offered to him, and their service would only be in an honorary capacity. [6]

Md. Tahir had come up with a contrary view and said that it is unjustified to restrict or make any person unable to do what that person aspires to do, and he also suggested that there should not be any provision that restricts a person from acting when he has the capacity to perform that work[7]. His contention was quite reasonable, but he didn’t consider enough the consequences of allowing a retired judge to hold any office of profit under the government. It is apparent that allowing a judge to serve wherever he wants would compromise the independence of the judiciary.

Although the distinct knowledge and capabilities a retired judge of the Supreme Court or High Court holds shouldn’t go to waste. K. Santhanam had proposed that there should not be a complete prohibition on retired judges holding government office after retirement. He had also cited the example of Justice Varadachariar, who was the chairman of the Income Tax Investigation Commission, to draw attention to positions such as commissions where a retired judge could be the best fit. But at the same time, he argued to prevent retired judges from holding any office of profit in government or in a private company. His words were very specific on keeping the judiciary beyond the possibility of temptation. [8]

Furthermore, M. Ananthasayanam Ayyangar also came in support of K. Santhanam and urged the members of the constituent assembly to support the amendment moved by K. Santhanam that whoever holds the position of judge in the Supreme Court would not be eligible to accept any office of profit except with the president’s consent. [9]

There was a fierce debate on this very issue in the constituent assembly, and in the end, Dr Bhimrao Ambedkar refused to accept any amendment that would prohibit retired judges of the Supreme Court and High Court from holding any office of profit. He referred to it as a very great handicap to those persons who possess talent for doing work of this sort”. [10]

On the point of government's impact on the independence of the judiciary, [11] Dr. Ambedkar had said that, 

..........in cases in which the government is involved, the judiciary decides the cases by taking remotest interest or no interest in the government, and cases between private citizens mainly come, while cases against the government are very rare. So, there’s at least a very small chance of government influence over the judiciary.

Dr Ambedkar’s perception is quite outdated in light of today’s circumstances. During colonial rule, private cases involving citizens were primarily handled by the higher judiciary, and the government's involvement in such cases was minimal. But as of now, the Indian government is the largest litigant in the country. Juhhhhhhhhhhhhh

Constitution mention many duties to the government and rights to the citizen, if government fails to fulfil its duty or violate the rights provided to citizens than it is obvious that such matter would be handle by the court as being the guardian of the constitution. Ultimately, the number of cases against the government increases at a very high rate, but it is quite surprising that Dr Ambedkar, a visionary, failed to foresee the consequences.

In 1958, 1st law commission had emphasized over prohibition on judges to hold post retirement office under government and mentioned that, "But there can be no doubt that it is clearly undesirable that Supreme Court Judges should look forward to other Government employment after their retirement" [12] and reasoned it by saying that, “The Government is a party in a large number of causes in the highest Court and the average citizen may well get the impression, that a judge who might look forward to being employed by the Government after his retirement, does not bring to bear on his work that detachment of outlook which is expected of a judge in cases in which Government is a party." [13]

Is the post-retirement appointment of judges justifiable?

Judicial independence (or independence of the judiciary) is a principle that the judiciary should be isolated from legislative and executive power. In literal terms, no political or private power would be able to illegitimately influence the work of the judicial system. Independence of the judiciary is a vital postulate to ensure the doctrine of separation of powers. As a democratic country, India believes in the separation of powers among the executive, legislative, and judicial branches. Independence of the judiciary ensures that judicial activity is conducted in an unbiased and impartial manner. It strengthens the judiciary's ability to check any arbitrary action by the executive or legislative organs. People vest their faith and trust in the judicial body, which they believe would protect them from unfairness and injustice, and holding office under the government just after retirement shakes people's faith in the judiciary.

A prodigious jurist, J.S. Verma, once spelt out how the independence of the judiciary holds the faith of the people.

The role of the Judiciary under the Constitution is a pious trust reposed by the people. The Constitution and the democratic polity thereunder shall not survive the day the Judiciary fails to justify the said trust. If the Judiciary fails, the Constitution fails, and the people might opt for some other alternative.[14]

In the case of the master of the roster, Justice A.K Sikri has quoted that

The faith of the people was the 'bed-rock on which the edifice of judicial review and efficacy of the adjudication are founded' and erosion of credibility of judiciary in the public mind was the greatest threat to the independence of judiciary. [15]

It doesn’t take much to understand how the post-retirement appointment of judges affects the credibility of their pre-retirement judgements. In September 2012, Former finance minister late Arun Jaitley gave a speech in the Lok Sabha on the post-retirement appointments of judges; he said: "Pre-retirement judgements are influenced by post-retirement jobs."

Every such post-retirement appointment, which is held soon after the retirement of the judge and his pre-retirement judgments were also in favour of the government, then it gets easier for people to charge the appointment as quid pro quo; although it is not necessary that such a charge would be true in nature but it is undeniable that it casts a cloud of lack of credibility on the whole judicial system. So it would not be wrong to say, post-retirement appointment of a judge is a threat to the independence of the judiciary.

Vidhi Centre for Legal Policy released a report in 2016 that includes data on the 100 most recent retired Supreme Court judges as of February 2016. The report says that of the 100 judges who retired from the Supreme Court, 70 took post-retirement jobs. There are several laws that require the appointment of only retired judges, and this is the primary reason for the appointment of 56% of them to various tribunals and commissions. About 36% of them are exclusively appointed by the central government to various government bodies, such as committees, commissions, ombudsmen, and more. Even more than 30 judges were appointed within a year of their retirement.”

A post-retirement appointment of a judge doesn’t have only cons; it also comes with lots of perks. A retired judge from the High Court or the Supreme Court brings a wealth of experience and intellectual ability, making them well-suited to the work of tribunals, commissions, and many other judicial roles. It would be improper to let such a judicial mind go unused by not taking advantage of it. It is an undeniable truth that, till now, many principal commissions or tribunals have been properly functioning with the help of these eminent jurists. On the demand of a complete ban on the function of retired judges in the constituent assembly, Ambedkar had asked the members, “Who else can be appointed to such a position except these jurists and said It would be a very great handicap if these very persons who possess talent for doing work of this sort.”

Comparative Analysis Among Common Law Countries: India, USA & UK

Independence of the judiciary is a crucial factor for every country that believes in the separation of powers doctrine, whether in India or elsewhere. The U.S.A. and the U.K. are prime examples of democratic countries that emphasise judicial independence. As India has consciously acknowledged that judges’ retirement-related provisions might threaten the independence or integrity of the judiciary, so have the U.S.A. and the U.K. All three countries have opted for a better alternative to prevent temptation in their judicial work.

India and the UK both have a provision for mandatory retirement; at a certain age, judges must retire. In India, the age limit for Supreme Court Judges is 65 years, and for High Court Judges, 62 years. In the UK, the specified retirement age for Supreme Court judges is 70; previously, it was 75, but the Judicial Pensions and Retirement Act 1993 reduced it to 70. The US doesn’t has any mandatory retirement provision, as Article III of the American Constitution holds that a judge “shall hold their Offices during good behaviour, and shall, at stated time,” [16] which ultimately means until they are mentally and physically capable they could hold office, and no said age restriction is to Supreme Court Judges. In all respects, the US provision seems more robust at restricting temptation in judicial decision-making, but it delays the judiciary for quite a long time and prevents new talent from entering the field.

Neither the US nor the UK restricts its retired judges from re-practising at the bar. In contrast, India, under Article 124(7) and Article 220, prevents Judges of the Supreme Court and High Court, respectively, from acting or pleading before the same court in which they served as judges or before a lower-ranked court. Allowing a retired judge to practice in the same court or a court lower than the court in which he was a judge, as it might give him undue advantage and influence judgment. India’s stand on blocking re-entry to practice is desirable.

References

[1] R v Sussex Justices, (1924)1 KB 256

[2] Paul L. Edenfield, “No More the Independent and Virtuous Judiciary?: Triaging Antidiscrimination Policy in a Post-Gilmer World” 54(6)Stanford Law Review 1321-1357(2002). [3] V.R Krishna Iyer, Justice at crossroads (New Delhi: Deep and Deep 1992), 60-61. [4] Ibid [5] Ibid [6] Ibid [7] Ibid [8] Ibid [9] Ibid [10] Ibid [11] Ibid [12] 1st Law Commission of India, “14th Report on Reform of Judicial Administration,” (September, 1958).

[13] Ibid [14] Shanti Bhusan v. Supreme Court Of India, (2018) 8 SCC 396 [15] Ibid [16] Constitution of the U.S.A., Art. III