October 15, 2020
The independence of the judiciary was considered by the framers of India’s constitution to be of paramount importance chiefly because the functioning of an effective democracy required judges of the higher judiciary to remain free of any political influence. In the case of Indian democracy, this is particularly so, as the constitution vests in the country’s judges an enormous power. The Supreme Court of India and the High Court act as the final arbiters of constitutional disputes, and can overrule not merely ordinary law enacted by a legislature that enjoys popular will, but, after the Kesavananda Bharati case, also constitutional amendments, which in the courts’ view infract the “basic structure” of the constitution. The institutional integrity of the judiciary, therefore, requires the courts to enjoy the confidence of the public; society needs to see judges as bastions of justice, who will stay independent of government to uphold the people’s most fundamental rights. Article 50 of the Indian Constitution states that the state shall take steps to separate the judiciary from the executive, since the executive has nothing to do with the appointment of Supreme Court judges, its power to appoint them post retirement can cast a shadow on the integrity of the judiciary.
An independent study conducted by Vidhi
Centre for Legal Policy found that almost 70% judges of the Supreme Court get
government jobs post retirement.36 % of all the appointments were also made by the central
government exclusively to several bodies including tribunals, commissions, ad
hoc committees and other government positions like Lokayuktas.[1] Another study reveals that chances of a
judge to get post retirement job increases by 15-20% with every judgment that
favours the government.[2]
First law commission’s 14th report suggested that the judges of higher
judiciary should not accept any government post after retirement because their
conduct even after retirement are crucial to preserve the faith of people in
judiciary.[3]
Report stated:-
“The practice of judges
looking forward to or accepting employment under the government after
retirement was undesirable as it could affect the independence of the
judiciary. We, therefore, recommended that a constitutional bar should be
imposed on judges accepting office under the union or state governments.” But such a bar was never
put in place due to absence of any such law.
The Supreme Court of India in the recent ‘master of the
roaster case’ reiterated that the public confidence was the greatest asset of
judiciary, the court held that- “the
faith of the people is the bed-rock on which the edifice of judicial review and
efficacy of the adjudication are founded. Erosion of credibility of the
judiciary, in the public mind, for whatever reasons, is greatest threat to the
independence of the judiciary”[4]
In the case of Madras
Bar Association v. Union of India[5], where the Supreme Court
declared National Tax Tribunal as unconstitutional because when the litigant
becomes appointing authority it violates independence of judiciary which is
also a basic feature of the Indian Constitution. Bar Council of India has also requested the
judges of Supreme Court and High Courts not to take post retirement jobs at
least for two years once they retire.[6]
Arguments
that favours post retirement jobs-
The valuable experience and insights that competent
and honest judges acquire during their period of service cannot be wasted after
retirement. Unlike abroad, a judge of the higher judiciary in India retires at
a comparatively young age and is capable of many more years of productive work.
However, government-sponsored post-retirement appointments will continue to
raise suspicion over the judgments. Therefore, the viable option is to
establish, through a statute, a commission made up of a majority of retired
judges to make appointments of competent retired judges to tribunals and
judicial bodies. Supreme Court can put in place a process to regulate
post-retirement appointments for judges. Attorney General of India K.K.
Venugopal said “so many years of worthy experience would be in vain if that
were to be the order of the day; how would the tribunals and commissions
function?”[7]
Arguments
against the post retirement jobs-
The immediate appointments suggest that decisions
regarding their post-retirement assignments were already taken by the
government. Immediate post-retirement appointments of the judges create a cloud
over the sanctity of their judgments, irrespective of their merits. Judges
accepting jobs under the Executive certainly creates situations of conflicts of
interest. It tends to undermine public faith in judicial independence. In the
recent ‘master of roster case,’ the Supreme Court reiterated that public
confidence was the greatest asset of the judiciary. Judiciary and executive
should remain mutual watchdogs than mutual admirers.Additionally, the acceptance of
post-retirement jobs leaves newly retired judges open to political criticism
from the opposition, who use it as an excuse to not only cast aspersions and
insinuations on the government of the day and the judges who accepted these
jobs immediately on retirement, but also on the Court, the Judicial system, and
the judgments and orders passed by these judges while in office. This gets
exacerbated when judges take up these appointments within days of retirement,
as was done recently for appointments to the National Consumer Disputes
Redressal Commission and the National Green Tribunal. Issues of propriety also
flare up in cases of purely political appointments, such as if judges on
retirement become Governors.
Conflict
of Interest
Independent judiciary
is the soul of Rule of Law, and core branch of liberal democracy. Judiciary can
never be fair and transparent if government can influence their judgments. The
possible conflict of interest in ruling on cases against the government or
government functionaries if a quid pro quo is involved has been talked about in
the past. The
primary fact remains that judges who seek post-retirement jobs may seek to
ingratiate themselves to their future employers, in this case, the Government
of India (also the largest litigant in the country). Even assuming that no such
exercise is undertaken by judges, the question of appearances and perception
must rule from front and centre. The practice followed by high Constitutional
functionalities must not suffer from an infirmity this grave, which allows for
even the distinct possibility of a judge acting in an unseemly manner.
In 2012 the then Leader of Opposition and senior BJP leader
Mr. Arun Jaitley stated that-
“Pre-retirement judgments
are influenced by a desire for a post-retirement job. My suggestion is that for
two years after retirement, there should be a gap (before appointment), because
otherwise the government can directly or indirectly influence the courts and
the dream to have an independent, impartial and fair judiciary in the country
would never actualize”[8]
Justice B. Kemal Pasha, a retired judge of Kerala High Court
in his farewell speech said “When a judge is expecting a post-retirement job
from the government, normally he will be in a position not to invite
displeasure from the government at least in the year of retirement. There is a
common complaint that such judges do not invite displeasure from the government
by expecting post-retirement jobs”[9]Recently Justice Sunil Gaur of Delhi High
Court who rejected application (two days prior to his retirement) of former
finance minister P Chidambaram for protection from arrest in the famous INX
media case was appointed as chairman of Prevention of Money Laundering
Appellant Tribunal. There are two important things we need to consider, first
the case was very politically influenced and second the appointment was cleared
within days. There is no doubt with respect to the merit of judgment, but even
a slightest perception can damage the image of judiciary and confidence of
public.
In the case of Rojer
Mathew v. South Indian Bank Ltd.[10], the amicus curiae, Mr.
Arvind P. Datar suggested that the “Tribunals
should not be heaven for retired persons and appointment process should not
result in decisions being influenced if the government itself is a litigant and
appointment authority at the same time, there should be restrictions on
acceptance of any employment after retirement”
Justice
Krishna Iyer’s observation demonstrates how the prospect of post-retirement
employment can severely damage judicial independence. He states-
“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.”[11]
Position
in other countries
In USA, to
prevent to conflict of interest and to maintain independence of judiciary,
judges don’t retire lifelong, once they appointed they can only be removed
through impeachment. In USA instead of impeaching a judge after certain age the
system indirectly bribes the judge to leave office or reduce workload.When
judges reach the age of 65, they become subject to the Rule of 80. Under the
Rule of 80, a judgereceives a full pension—equal to his or her salary—when the
judge’s age and the judge’syears of experience on the bench equal 80. For
example, a 65 year old judge with 15years on the bench qualifies under the Rule
of 80, as does a 70 year old judge with 10years on the bench.It is important to
understand that because a judge receives full pay upon satisfying the Rule of
80, the judge has no pecuniary reason to stay in office.In UK, judges retire after 70 years of age
and there is no such law which prohibits the post retirement jobs, however no
judge has taken such post.
Suggestions
1. India’s judges serve very
little time as chief justices. A suggestion would be to extend the retirement
age till 70 on the condition that any statutory position has to be given within
the tenure of the judge.
Alternatively,lifetime tenure can be
provided to judges, which would shield judges from political influence. However
life time tenure has its own disadvantage as that would lead to unemployment
and old age judges whose skills have eroded cannot be removed from post would
be a burden on courts, it is also pertinent to note that the judges enjoy their
work when their abilities are sharp.
2. The judiciary needs a
mechanism to regulate the post retirement jobs of the Judges, for example Chief
Justice of India and Leader of Opposition should be consulted before
appointment.
3. Former CJI, RM Lodha
suggested that the judges should not take any post after retirement for at
least two years after retirement. This will prevent the conflict of interest,
for this a special law can be passed by the parliament. He also suggested that
the retirement age could be increased. The appointment should be done after
consulting with current Chief Justice of India.
4. If a judge wishes to opt for
post retirement job, his pension should be stopped.
Conclusion
While the framers wrote into the Constitution that judges
must not “act” or “plead” before any “court” or “authority” in India, there is
nothing in the Indian Constitution that prevents the government from offering
and, judges from accepting, post-retirement jobs. Indian courts have read this
provision very narrowly to exclude situations where judges become governors,
Members of Parliament or members of tribunals and commissions of inquiry.During
the last few years of retirement, when post retirement jobs become possible for
the judges, independence of judges falls under stress. The immediate
appointment of a judge post retirement by government creates cloud over the
judgments that were pronounced by the judge, government is a major litigant and
when a judge gets benefits from a litigant even after retirement it may vitiate
the sanctity of judicial process irrespective of the merit of the judgments.Supreme
Court in the master of roster case stated that public confidence is the
greatest asset for judiciary, therefore judges should keep in mind that their
conducts even post retirement are important to preserve this confidence.
Next, the Constitution should be
amended to provide for a total restriction on judges of constitutional courts
from accepting post-retirement government jobs. Articles 148 and 319 of the
Constitution already contain such restrictions for the Comptroller and Auditor
General and the Chairperson of UPSC, respectively. MC Setalvad, who headed
Independent India’s first Law Commission, suggested this as early as in
1958.Alternatively, there could be a provision for a “cooling-off” period of at
least three years between retirement and acceptance of post-retirement jobs to
allow for appointment of retired judges to those tribunals and commissions that
demand considerable judicial experience. We also need to revisit the
legislations that allow retired judges to head various commission and
tribunals.
‘Justice should not only be
done, but also seem to be done’ gets more profound in this context.
[1]Shreeja Sen, “70 of last 100 retired Supreme Court judges took post retirement jobs:report” 3 December, 2016 (Available at-https://www.livemint.com/Politics/FptQJ57Ifc9oET7HDxNPNJ/70-of-last-100-retired-Supreme-Court-judges-took-post-retire.html)
[2]The Print, “The ‘Honorability index’: A look at Supreme Court judges who took post retirement jobs’”19 March, 2020 (Available at-https://theprint.in/opinion/the-honourability-index-a-look-at-supreme-court-judges-who-took-post-retirement-jobs/383450/)
[3]Law Commission Report No. 14- on Reforms of the Judicial Administration, Vol (1) 1958.
[4]Shanti Bhushan v. Supreme Court of India through its Registrar, Writ Petition No. 789/2018.
[6] Manu Sebastian,“Giving jobs to judges as soon as they retire helps government influence courts”, 8 July, 2018. (Available at-https://thewire.in/law/giving-jobs-to-judges-as-soon-as-they-retire-helps-government-influence-courts)
[7]Mehal Jain, “Judges should accept post retirement jobs, increase salary and retirement age of judges- AG KK Venugopal”,1 October, 2018,(Available at -https://www.livelaw.in/judges-should-accept-post-retirement-jobs-increase-salary-and-retirement-age-of-judges-ag-kk-venugopal/)
[8]YK Kalia, “Why post retirement jobs for judges is a bad idea”, 30 March 2020. (Available at-http://tehelka.com/why-post-retirement-jobs-for-judges-is-a-bad-idea/)
[9]Supra note 10.
[10]Civil Appeal No. 8588 of 2019 (Available at-https://indiankanoon.org/doc/36423291/)
[11] Arghya Sengupta, “After the judges retire: time for a fresh look at sensitive judicial afternoons and evening” 8 May, 2019. (Available at-https://vidhilegalpolicy.in/2019/05/08/after-the-judges-retire-time-for-a-fresh-look-at-sensitive-judicial-afternoons-and-evenings-the-times-of-india/)
(Vipin Sharma is a law graduate from NUSRL, Ranchi)
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