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Why Second Inning on Judicial Field?

Written by Hasan Khurshid

“I look at criticism in a very positive light…. all criticism of the court is really an effort for us to reform”, said Hon’ble Dr. Justice Dhananjaya Yashwant Chandrachud, Chief Justice of India (CJI), while delivering his address during HT leadership summit on November 12, 2022.

Referring to criticism of judicial overreach the CJI said, “One critical area that comes to the court is- how do you distinguish between the lines of area of policy and legality?” Often, the CJI added, courts are criticized for treading upon areas of policy that lie with the executive. But the difficulty arises when a case has some ‘facets of legality’ and some ‘facets of policy’.

What would his Lordship comment on the question or else criticism- Do post retirement appointments of judges undermine public faith? Although this is a general perception, but BJP’s deceased leader and former Union minister had specifically discussed the phenomenon of members of higher judiciary interfering in policy matters, the domain of the Executive, that too for personal gains.

Arun Jaitley, former leader of Opposition in Rajya Sabha, on September 5, 2013, had said, “There is a proposal to increase the age of retirement of judges, please do it but with conditions. We are lavishly creating post-retirement benefits for them. If we don’t create, they themselves create it. The view of the Supreme Court is that every member of the Central Information Commission (CIC) must be a retired judge.”

Arun Jaitley further said, “There is a situation where you say what should be the fees of a college. It is an accounting matter, but the judicial order says that the fees of an engineering college should be decided by a retired judge. I think the temptation of continuing in a job is to keep occupying the bungalows. It is a very serious temptation. There is a danger that the desire for a post-retirement job influences the pre-retirement judgements.”

Again, on May 11, 2016, Arun Jaitley in Rajya Sabha gave a statement that “judiciary is destroying the edifice of India’s legislature step by step, brick by brick.”

The age of high court judges as per Article 217 (1), has already been increased in 1963 from 60 to 62 years, through the 114th Constitutional amendment. Similarly, through Article 124 (2), the age of Supreme Court judges has been increased. How many times will it be increased? Moreover, such a preferential increase in total disregard to other service providers, government functionaries contravene the spirit of Article 14 and 16 of the Constitution, as profession of judges can not specifically be benefitted in comparison and contrast to other government officers. Compared to judicial officers, armed forces personnel are at a greater risk of life, they are retired young but never ask for any such favours from the government. Don’t they deserve?

Are judges like Caesar’s wife expected above suspicion? A bench of Justices Sanjay Kishan Kaul and Abhay S Oka, on November 18, 2022, holding advocate M.L. Sharma, and others who appeared on behalf of Tikamgarh Municipal Council as contemnors said, “We aren’t infallible, and we can also commit mistakes.” The court added that mistakes are rectified, and judgements are set aside by courts, but it does not mean motive is attributed to a judge.

Madhav Arey, Shubhankar Dam and Giovanni KO authored a 2017 working paper. “Jobs for justice(s): Corruption in Supreme Court of India.” The contents of the paper were based on a dataset of all Supreme Court judgements between 1999 and 2014, involving the government, found that authoring judgements “in favour of the government” had a “positive” association with the likelihood of a prestigious job after retirement as Supreme Court judge.

As far as the utilization of precious experience and financial well-being is concerned, retired judges can serve as faculty members with the law colleges and organize conferences and seminars on the subject of law in the galaxy of young promising lawyers, judicial officers. There can be many avenues as private consultants or professors of law, to serve humanity utilising their vast experience and expertise other than the government jobs.

Dr. R.V. Asokan, former secretary general of Indian Medical Association, is of the opinion that lavishly creating post-retirement jobs for the high courts and Supreme Court judges is an unhealthy phenomenon for society. Dr. Asokan also feels that authoring judgements in favour of the government had a positive association with the likelihood of a prestigious job after retirement as SC judge. He feels that even the bureaucrats should not be given post-retirement jobs nor should they be given extension of service. However, these experienced people having had lifelong training and practice of a difficult profession should entail serving the people through paid/honorary post after retirement in their individual capacity.”

Dr. Asokan is right as recently the Union government has granted a third one-year extension till November 18, 2023, to Sanjay Kumar Mishra, 1984-batch Indian Revenue Service (IRS) officer. Mishra, one of the powerful officers who heads the Enforcement Directorate (ED), has been instrumental in leading Centre’s crusade against black money and presided over several high profile cases, including that of Gandhis in National Herald case besides host of Opposition leaders and industrialists.

Pawanjit Ahluwalia, an ex-Army officer and CMD of multi-national risk management company says, “post-retirement appointment of a high court or Supreme Court judge in position given by the government is not a healthy phenomenon.

Ahluwalia expressed surprise as vide Article 124 of the Constitution, “no person who has held office as a judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India” and the Article 220 bars high court judges from pleading before “any authority in India except the Supreme Court and the other high courts”. Whereas the same judges are not barred in taking up assignments below the dignity of their being a judge soon after retirement. Even if a judge is re-appointed as ad-hoc judge, for one or two years, he or she goes to the bottom of the ladder and does not retain his/her seniority on the bench. Therefore, Article 127 is rarely invoked.

Senior Advocate Mahalakshmi Pavani, President Supreme Court Women Lawyers Association, said, “I feel there is a pressing need to balance out the situation and perhaps looking at it holistically. On one hand, post-retirement opportunities might bear influence on SC/HC judges towards the fag end of their tenure since they might be interested in exploring a certain avenue. However, equally important is the fact that these judges bring years of experience which helps them to do justice to the position they occupy post retirement. For instance, many judges chose to head tribunals and such allied forums, given the years of experience, they’ve seen the law progress, being adept with the nuances of the law, their experience does bring a fresh perspective into the position they hold.”

When asked whether authoring judgments in favour of the government is a positive link with the likelihood of a prestigious appointment after retirement as SC judge, Mahalakshmi said, “This is an argument for academic investigation. However, I do feel there are cogent examples of how judicial responses to pandering incentives in favour of the ruling government has long-drawn implication on welfare with the potential of serious miscarriage of justice. However, what also needs to be flagged is that this depends on the facts and circumstances of each, and every case and one cannot categorize all seemingly “pro-government” judgments as means of appeasement of a said political party or the government in-toto. The yardstick for assessment is the welfarist repercussions of the judgment in question. First, identifying anything about the “correctness” of a ruling requires deep textual analysis, which is infeasible on a large scale. Second, there is no natural way of identifying the welfare-maximizing ruling when it requires taking sides between, for example, a pro-free speech Court and a pro-security government.”

She further said, “We do have enough checks and balances provided under the law to take care of this situation, there isn’t a need felt for such situations. Furthermore, the expertise and experience of officials is always an added bonus. You have the Prevention of Money Laundering Act, 2002 and the Right to Information, 2005 which have placed teething provisions.  For instance, the Prevention of Money Laundering Act, 2002 (PMLA) empowers the Enforcement Directorate to attach the properties of a person alleged to be involved in money-laundering under Sections 3 & 4 of the Act. Or on the other hand, as per the RTI Act 2005, all organizations that come under the purview of the law are supposed to put up all kinds of paperwork pertaining to the working of these departments on their website. Yet most departments do not put up their contracts or tender approval processes followed in the public domain. If the bureaucracy that governed RTI had ensured that all ministries, public sector undertakings and departments in the country that figure under the law were to place all relevant records online, then it would become difficult for corrupt government servants to, for instance, draft contracts that may be more than generous towards a vendor. In short, if all such paperwork were to be available freely, then there would be real transparency.”

Advocate Surender Kumar Singhi, managing partner, S K Singhi & Partners, said, “Indian Supreme Court judges and high court judges retire at 65 and 62 years respectively. They still have about 10 years of their life to contribute to the legal profession. Most of them do not find work post retirement and having lived on a meagre salary given to these judges, they have hardly saved enough to lead a post retirement life. In my view, there is absolutely nothing wrong if the Government utilizes these retired judges’ experience and expertise by way of appointing them to the posts which require their experience and expertise. As a matter of fact, the society to whom these judges have served for most of their lives dispensing justice owes a duty to honor them with gratitude instead of running them down for either accepting post retirement posts or seeking them.”

With regard to suspicion that authoring judgments in favour of the government has a link with post-retirement benefits, Singhi said, “The Supreme Court and high courts judges sit in division benches. It is therefore not probable that both these judges on the division bench who have delivered a judgement would have consciously delivered a pro- government judgement. A case in point is the alleged pro- government judgement by the Supreme Court in Ayodhya case. The judgement was delivered by a constitution bench of 5 judges. Is it probable that all the 5 judges (including a Muslim judge) have delivered this judgement to favor the government?”, quipped Singhi.

Looking back, since 1950, almost 44 chief justices of India (CJIs) have accepted post-retirement jobs. According to a study, as many as 70 of over 100 retired Supreme Court judges have taken up such assignments with organisations like National Human Rights Commission National Consumer Dispute Redressal Commission, Armed Forces Tribunal, Law Commission of India, etc. Some have been appointed as heads of the commissions or as governors of states.

About 36% of the appointments were made by Centre mainly to tribunals, commissions, ad hoc committees and positions like lokayuktas. In some cases, Supreme Court judges have been appointed to commissions even four months ahead of retirement.

The immediate appointments suggest that decisions regarding their post- retirement  appointments  were already taken by the government. Immediate post-retirement appointments  of the judges create cloud over the sanctity of their judgments irrespective of their merits. 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.

The post-retirement job phenomenon of ‘uncle judges’ is a big impediment for the young dynamic and the most talented judges in climbing the ladder of their career, who could have proved their acumen being young, energetic  physically, mentally, as well as digitally.

CJI Chandrachud accepted that government is the big litigant. As such, from the common sense point of view, appointment process should not result in decisions being influenced if the government itself is litigant and appointing authority simultaneously.

Former CJI R.M. Lodha had said that judges should not take post-retirement government posts for at least two years of demiting office. This is necessary to prevent conflict of interest.

Recently retired CJI Justice Uday Umesh Lalit on November 13, 2022, during an interaction with media at his residence said,” Rajya Sabha nomination, governor’s post don’t  benefit the status of CJIs.” Justice Lalit however made it clearly that it was his personal view.

Hon’ble Justice B.A. Khan, former chief justice of J&K high court suggested, “A law would have to be enacted banning a CJI and judges of Supreme Court from accepting any post-retirement engagement. This would indeed preserve and safeguard rule of law and independence of the most vital limb of judiciary as custodian of the Constitution.”

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Hasan Khurshid

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