The motion for the ongoing debate – ‘Should judges opt for post-retirement jobs or should they not’ – was stoked earlier this week by two senior Supreme Court Justices who are due to retire within the next few months.
Justice J Chelameswar and Justice Kurian Joseph, respectively due to retire this year on June 22 and November 29, categorically said that they would not be accepting post-retirement jobs. Although they are not the first ones to do so -- former Chief Justices of India S H Kapadia, R M Lodha and T S Thakur have preceded them, to name a few – their refusal was enough to ignite the debate all over again.
The Constitution does not specifically bar judges from taking up any post-retirement assignment but there have been suggestions that there should be a minimum cooling-off period between retirement and a new assignment to prevent conflict of interest. These posts are generally constitutional or of quasi-judicial bodies, whose laws more often than not mandate that only retired judges can occupy them.
According to a study done by the legal think tank, Vidhi Centre for Legal Policy, as many as 70 of over 100 retired Supreme Court judges have taken up such assignments in organizations like the National Human Rights Commission, National Consumer Disputes Redressal Commission, Armed Forces Tribunal, Law Commission of India etc. Some have been appointed heads of commissions looking into the anti-Sikh riots or the Gujarat riots or as governors of states.
The study says there are several reasons why retired apex court judges are appointed to these posts, usually by the central and state governments. One of them is that the statutes of these bodies have laid down that only candidates with specific qualifications will be considered.
At least 56 per cent of the appointments were made because they were required by law, the report says, implying a structural problem.
About 36 per cent of the appointments were made by the central government, mainly to tribunals, commissions, ad hoc committees and government positions like that of Lokayukta.
More than 30 judges were appointed within one year of their retirement. About seven were appointed even before they retired.
In 2014, former Chief Justice of India P. Sathasivam was appointed Governor of Kerala. Among other statutory appointments made are those of former Chief Justice H L Dattu, who is chairperson of the National Human Rights Commission, and former apex court Justice S J Mukhopadhaya, who is chairperson of the National Company Law Appellate Tribunal. The Law Commission chairperson is former Supreme Court judge, B S Chauhan.
Since 1950, there have been 44 Chief Justices of India who have accepted post-retirement jobs.
In some cases, Supreme Court judges have been appointed to commissions even four months ahead of retirement, as for instance Justice Dalveer Bhandari. He was due to retire on September 30, 2012, but resigned some five months earlier after being elected as a judge of the International Court of Justice, based in The Hague.
Likewise, four months before Justice Mukundakam Sharma retired on 18 September 2011, he was cleared for appointment as chairman of the Vansadhara Water Dispute Tribunal. Former Chief Justice R M Lodha, who was of view that judges should not take post-retirement government posts for at least two years of demitting office, had suggested that before a judge retires, the government should ask him whether he wanted to be a pensioner or continue to draw his existing salary.
“Once he opts for pension, he is out and can do what he wants, but not any engagement or post under the government. Once you have opted for full salary, that name should be put in a panel. When a vacancy arises, appoint the man in consultation with the CJI, who can be appointed with the government’s consultation, and this way all allegations of appeasement, favouritism, allegations that somebody was trying for a post will come to an end,” Lodha had said.
He had also pointed out that since statutes of some tribunals and quasi-judicial bodies mandate the appointment of retired judges, the practice would have to continue unless the laws were amended or some other method was found.
Pitching for a cooling-off period between retirement and appointment to such posts, former Additional Solicitor General A S Chandhiok suggested this was necessary to prevent conflict of interest. “An amendment to the Constitution can be done by incorporating a provision similar to Articles 148 or 319. A special law can also be passed by Parliament prohibiting retired judges from taking up any appointment for two years,” he said.
The first Law Commission, headed by M C Setalvad, had recommended that judges of the higher judiciary should not accept any government job after retirement. Such judges must not forget that their conduct even post-retirement was crucial to preserve people’s faith in the judiciary, it had said.
Senior lawyer B S Chaturvedi echoed the view, suggesting that laws mandating appointment of retired Supreme Court/High Court judges to various posts must be amended to ensure they are not given post-retirement benefits.
Senior advocate Rekha Sharma said, “I am not suggesting that judges should not take post-retirement jobs but there should be a cooling-off period.” Former Delhi High Court Chief Justice A P Shah suggested a total ban on post-retirement jobs and an increase in retirement age.
What Does Constitution Say?
Article 124 states that “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.”
Article 220 bars High Court judges from pleading before “any authority in India except the Supreme Court and the other High Courts.”
Practices Worldwide
UNITED STATES: No Supreme Court judge retires lifelong. Done to prevent conflict of interest
UNITED KINGDOM: Supreme Court judges retire at the age of 70. No law stopping judges from taking post-retirement jobs but no judge has taken such a post