Context: Belying the expectation of judges leading a retired life, the clear demarcation between the judiciary and executive got blurred over the years with many judges began to accept posts offered by the government.

More on the news: 

  • A few years ago, a former Chief Justice of India (CJI) was made a Governor by the ruling BJP government. 
  • Presently,the case of a former CJI, Ranjan Gogoi, being nominated by the President to the Rajya Sabha and taking oath as Member of Parliament has given rise to the impression that his nomination was a reward for major decisions that sided with the government.
    • His appointment and that too within a few months of his retirement, not only raised eyebrows but came in for severe condemnation from varied corners.

Place of Judiciary in the Constitution

  • The Constitution has been conceived to provide a pride of place to the judiciary. 
    • Constitutional appointees to the Supreme Court have been guaranteed several rights in order to secure their independence. 
    • Chapter 4 of Part V of the Constitution deals with the Supreme Court, and Chapter 5 of Part VI deals with the High Courts.
    • The salaries of judges and their age of retirement are all guaranteed in order to secure their independence. 
    • They cannot be easily removed except by way of impeachment under Articles 124(4) and 217(1)(b)
    • They have the power to review legislation and strike it down.
    •  They can also question the acts of the executive
  • All this makes it clear that the framers of the Constitution envisaged an unambitious judiciary for which the only guiding values were the provisions of the Constitution.

Central Debate: Post-Retirement Jobs for Judges and Cooling Off period

Security of tenure - Essential for Judicial Independence 

  1. The Judges of HC and SC do not hold their offices at the pleasure of the President. They cannot be arbitrarily removed by the government once appointed.
    1. They can only be impeached by a special majority of both the houses of Parliament on the ground of proved misbehaviour or incapacity.
    2. Judges, therefore, enjoy security of tenure while holding office, which is essential for maintaining judicial independence.
  2. The Constitution also provides that a retired Supreme Court judge cannot plead or act in any court or before any authority within the territory of India.

Significance of Post-retirement executive jobs

  • People are fast losing confidence in the so-called independent judiciary. 
  • In the words of a former Union Minister: 
    • Every legislation is going too far, in creating post-retirement avenues for Judges. 
    • Almost everyone, barring a few notable, honourable men, who are an exception, wants a job after retirement. 
    • If Parliament doesn't create it, they themselves create it
    • The desire of a post-retirement job influences pre-retirement judgments. 
    • It is a threat to the independence of the Judiciary and once it influences pre-retirement judgments, it adversely impacts on the functioning of our Judiciary.

Retirement of Judges- A threat to Judicial Independence

  1. This issue was discussed in the Constituent assembly too, where Dr. BR Ambedkar argued in favor of Executive offices for Judges post retirement.
    1. He argued that there was a remote possibility of conflict of Interest because at that time Courts were mostly trying private disputes where the state was not involved as a litigant.

However, in the current scenario, the reasoning loses ground as the State has emerged as the largest litigant in the courts.

  1. In the U.S., judges hold office for life. On the contrary, In India, Judges do not hold office for life, they remain in office until they reach the retirement age of 65 for Supreme Court judges and 62 for High court judges.
  2. The retirement of judges threatens to undermine judicial independence. This is because some judges are offered post-retirement employment by the government. 
    1. It becomes a matter of apprehension that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position.
    2. Several chief justices of the Supreme Court in the 1980s were of the view that post-retirement employment with the executive was a key factor in undermining the independence of the judiciary. 
    3. It was also observed that Judges with short tenures at the Supreme Court tended to be favoring the government in their approach since they were up for post-retirement benefits.

Law Commission’s Recommendations

  • In its 14th report in 1958, the Law Commission noted that retired Supreme Court judges used to engage in two kinds of work after retirement.
  •  First being Chamber practice  (Giving opinions to clients and serving as arbitrators in private disputes) and secondly  Employment in Executive positions.
    • The Law Commission didn’t like the idea of chamber practice, but did not recommend its abolition.
    •  However, it strongly recommended a ban on post-retirement government employment for Supreme Court judges because the government was a large litigant in the courts. 
  • The Commission’s recommendations never saw the light of the day..

Role Model

  • In 1970, when Mohammad Hidayatullah was hearing the Privy purses case, which was of highly political nature, and it was his last judgement as the CJI.
    • He made it clear that he won’t accept any of the executive positions offered to him as his name was being considered for the World Court or for the position of Lokpal at the time of hearing.
    • Ultimately, he ruled against the government and held the abolition of Privy purses as Illegal.
  • After a cooling-off period of several years, he went on to become the Vice President of India under the Janata Government.
  • The Judges of Constitutional courts may take a cue from the case of former CJI M Hidayatullah.

Need for a legislation

  • Therefore, appointments of persons who have held constitutional office will undermine the very constitutional values of impartiality in the dispensation of justice. 
    • It will also go against the clear demarcation of separation of powers.
  • Given that such matters cannot be left to the individual whims and fancies of judges. 
    • The time is opportune to have a law in place either by way of a constitutional amendment or a parliamentary enactment barring such appointments. 
    • This is the only way to secure the confidence of the people and prevent post-retirement appointments. 
    • Judges can be compensated by being given their last drawn salary as pension. 
    • Also, the age of retirement for judges can be increased by a year or two.

This will undo the damage caused by post-retirement jobs as it is important to remember that judges are constitutional servants, not government servants.

Image Source: DNA India