• THE SOCIETY FOR CONSTITUTIONAL LAW DISCUSSION

POST TENURE ENGAGEMENT OF RETIRED JUDGES


Abstract

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

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


Introduction

In the modern era, people perceive court as a temple of justice and judges are recognise as the resemblance of god of that temple, perhaps that’s why they are addressed as lordship or ladyship. The sole reason behind all these reverence and homage of people is their faith in the justice of their judicial god. They have trust that they will get justice and will not be a subject of 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 administration of justice. Indian judicial system also functions on following the same principle. It’s the duty of every judge to not let people lose their confidence and trust in 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 the court as 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 have trust that unbiased judgement will be given by the honourable judges; even ruling government cannot influence their impartial adjudication. In every democratic country, each and every authority has limited power and no one have 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 power. A noted USA president Andrew Jackson has said, “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.”[2]

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

In further part of this article, the historical aspect of post- retirement appointment of judges, its impact on judicial independence, comparative analysis with USA and UK and later measures are suggested which would help in harmoniously dealing with the whole issue.


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.”[3]

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

The constitution on India holds certain provisions in respect of post tenure employment of retired Supreme Court and high court judges under Article 124(7) and Article 200. Even a bare reading of anyone of these articles would present the intention of the constituent assembly; the basic intention was to prevent temptation of adjudication as post retirement practice at bar would may result in biased decree by colleague judge. Although, none of constitutional Article entail provision regarding position impart by government to the retirees. It could be termed as a constitutional oversight of the constituent assembly. Despite had been enthralling debate over this subject among the member of constituent assembly they missed to bring curative provision regarding whole issue. Many people like KT Shah, HV Kamath, K Santhanam, M.A Ayyangar, Naziruddin Ahmad and Jaspat Roy Kapoor in constituent assembly have supported the amendment brought by P.K Sen to restrict post retirement employment of judges, might be they had diagnosed its impact over independence of 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 emphasized on “the office of emolument under the government” as government could impact pre-retirement judgement of a judges by alluring judges of post-retirement pecuniary position. “He expressed that a retired judge would not be engage in any office of profit under the government or its other organ. It is very essential to keep judges away from aligning with the government, otherwise phenomenon of judge linkage with political party would increase and it would be unfavourable for independence of judiciary.”[4]

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

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

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

Although, the distinct knowledge and capabilities, a retired judge of Supreme Court or High Court holds with them shouldn’t be let go in vain. “K. santhanam had proposed that there should not complete prohibition on retired judges to hold government office after retirement. He had also quoted an example of Justice Varadachariar, who was the chairman of Income Tax Investigation commission to draw attention to positions like commissions where a retired judge could be fittest person. But at the same time he argued to prevent retired judges from holding any office of profit in government or in private company. His words were very specific on keeping judiciary beyond possibility of temptation”.[8]

Furthermore, M. Ananthasayanam Ayyangar also came in support of K. Santhanam and “urged to 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 president’s consent.” [9]

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

On the point of government impact on independence of judiciary, Dr. Ambedkar had said that, cases in which government involves, the judiciary decides the cases by taking remotest interest or no interest to the government and cases between private citizens mainly comes and case against government is very rare. So, there’s very least chances of government influence over judiciary.[11]Dr. Ambedkar’s perception is quite obsolete in reference to today’s circumstances. During the period of colonial rule, mainly private cases of citizen were used to deal by higher judiciary and involvements of government in cases were very minimal in number but as of now Indian government is biggest litigant in the country.

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 government increase with very high rate but it is quite surprising that Dr. Ambedkar like visionary man failed to foresight the future consequence.

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 post-retirement appointment of judges justifiable?

Judicial independence (or independence of judiciary) is a principle that the judiciary should be isolated from legislative and executive power. In literal mean, no political or private power would be able to illegitimately influence the work of judicial system. Independence of judiciary is a vital postulate to assure the doctrine of separation of power. Being a democratic country India believes in separation of power among executive, legislative and judiciary. Independence of judiciary ensures that the judicial activity will take place in unbiased and impartial manner. It strengthens the judiciary to check any arbitrary action of executive or legislative organ. People vest their faith and trust in the judicial body which they believe would protect them from unfair and injustice and holding office under government just after retirement shakes up people faith in the act of judiciary.

A prodigious jurist J.S verma once spell out how independence of judiciary holds the faith of 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 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 master of 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 need much stress to understand how post retirement appointment of judges impact the credibility of their pre-retirement judgements. In September 2012, Former finance minister late Arun jaitly had given speech in lok sabha over post retirement appointment of judges; he said "Pre-retirement judgements are influenced by post-retirement jobs."

Every such post-retirement appointment, which held soon after 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 charge would be true in nature but it is undeniable that it caste the cloud of lack of credibility on the whole judicial system. So it would not wrong to say, post retirement appointment of judge is threat to independence of judiciary.

“A Think tank named Vidhi centre for legal policy has released a report in 2016 which incorporate the data of last 100 retired judges of Supreme Court as of February 2016. The report says out of 100 judges retired from Supreme Court 70 got post-retirement job. There are several laws which insist on appointment of only retired judges and this is the major reason behind appointment of 56% of them under different tribunals and commissions. About 36% of them are exclusively appointed by central government to various government bodies like committees, commission, ombudsman and many more. Even more than 30 judges were appointed within a year of their retirement.”

Post-retirement appointment of judge doesn’t carry only cons with itself rather lots of perks are also subsisting with it. A retired judge from High court or Supreme Court holds a wealth of experience and intellectual ability, very perfect for the work of tribunals, commissions and many more judicial works. It would be improper to let such judicial mind unused by not taking advantage of that. It is undeniable truth that tills now many principal commissions or tribunals have been properly functioned by these eminent jurists. On the demand of complete ban on function of retired judges in constituent assembly, Ambedkar had asked the members that who else can be appointed to such 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 judiciary is crucial factor for every country who believes in separation of power doctrine, whether it is India or any other country. U.S.A and U.K are the perfect illustrations of democratic countries which emphasize over judicial independence. As India has consciously acknowledged the fact that judges’ retirement related provision might bring threat to independence or integrity of judiciary, so did U.S.A and U.K. All three countries have opted better alternative to prevent temptation in their judicial work.

India and UK both have provision of Mandatory retirement, at certain age the judges would have to retire. In India, the age limit of Supreme Court Judges is 65 year and 62 year is for High Court Judges, In U.K, the specified age for retirement of judges of Supreme Court is 70; earlier it was 75 years for retirement but the judicial pension and retirement Act 1993 reduced it to 70. US doesn’t has any mandatory retirement provision, as article III of American constitution held that a judge “shall hold their Offices during good Behaviour, and shall, at stated Time”[16] which ultimately mean till they are mentally and physically capable they could hold office and no said age restriction is to Supreme Court Judges. In respect of all, US provision seems more robust in restricting temptation in judicial decision but it pause the judiciary member to quite long time and prevents new brains from coming in the field.

US and UK both don’t restrict their retired judges to re-practice at bar. In contrast, India under Article 124(7) and Article 220 preventing Judges of Supreme Court and High Court respectively to act or pled before the same court in which he was judge or in lower rank court. Allowing a retired judge to practice in the same court or court lower to the court in which he was judge, as it might give him undue advantage and influence judgement. India’s stand on blocking re-entering 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 World54(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 U.S.A., Art. III

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