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Post-tenure Political Appointment of Judges: A Judicial Impropriety

The independent nature of the judiciary is a quintessential feature of liberal democracies around the globe and our constitutional framework isn't an exception to it. The insulation of judges from political clutch and their prevention from the potential executive onslaught on independence has been discussed before and after the framing of the Constitution. Though procedural safeguards have been placed, few recent developments, mainly, nomination of Justice Gogoi to Rajya Sabha has confronted us with the issue of post-tenure pitfalls for judges.

Judicial integrity as a part of judicial ethics, either inside or outside the courtroom, is indispensable to the independence of the judiciary. The question lies whether they are obliged to follow this even after their retirement or not? A study with respect to past debates, practices in other democracies, statutes and conventions inclines towards an affirmative approach.

The constituent assembly debate itself bears witness to serious objections from prominent members including K.T. Shah, M.A. Ayyangar and S.L. Saxena on such post-bench appointments. They opposed them stating, if the temptation of being appointed to other high positions after retirement is not removed, it will also be liable to be abused by the Executive.

However, this suggestion was not incorporated into the constitution because a few other members, notably, Dr. B.R. Ambedkar dismissed this supposition by pointing out that the executive has very little scope to meddle with the judiciary. He was of the view that the judiciary is primarily concerned with adjudication on rights of people. Now, when the Union of India is the largest litigant before the court, it appears that his arguments have lost currency.

Shortly after this, in 1958, the Law Commission also took note of this issue in its 14th report, calling for a bar on acceptance of posts by judges under the government; it remarked this practice has a tendency to affect the independence of the judges and should be discontinued. Moreover, both, Bar and bench have also raised issues regarding the same.

Reflections Out Of Studies & Inherent Risks Associated With The Practice

The insufficiency of serious academic discussions is a major setback against the resolvement of this issue. A number of studies related to post-bench employment trends show that less competent judges are more likely to respond to financial & political incentives to retire.

Another key attribute reveals that a 'more influential' judge is more likely to get an outside job after his retirement. The conclusion placed by this research rings warning bells for India, particularly in the context of PILs which develop chances of close proximity between the bench & the government. Moreover, in the times when unwarranted mutual bonhomie between politicians and judges is visible in the public domain itself, such practice has become more concerning.

The assignment of cases to 'favourable judges' is a prerequisite for giving political judgments in India. The situation became noticeable after the perturbing developments at the apex court in the year 2018. Likewise, a study suggests that instances where the cases are not assigned randomly, a political angle becomes a significant predictor in the judicial outcome. Therefore, the argument that the prospects of post-bench appointments may bend the judicial integrity of judges cannot be overlooked.

Further, a research by Vidhi centre has highlighted that, out of all post-tenure appointments, 44% were such where the post is free from statutory constraints which usually happens in the case of tribunals/ quasi-judicial bodies. All of these studies strongly pitch the underlying argument that a considerable number of judges are prone to political influence while delivering opinions at the end of their tenure.

Despite no other explicit prohibition except those under Art. 124(7) and Art. 220; the real danger lies in the compromise of perception of impartiality in public which is in contrast vis-a-vis noble standards of judicial culture. Associations with professions which are ethically inconsistent with judgeship is denounced by the International Association of Judges (hereinafter ‘IAJ'). Article 8(3) of the Universal Charter of the Judge limits the scope of post-retirement career to exercise of professional legal activity only.

Furthermore, the visibility of judicial independence is an equally essential facet of independence. The commentary by the judicial integrity group at UN on Bangalore Principles of Judicial Conduct underlines that for a competent and strong judiciary, observance of constitutional propriety by judges even after retirement is necessary.

It also mandates the judges to carefully examine post-judicial employment to avoid conflict of interests. Observance of these principles by sitting as well as retired judges isn't superfluous; it actually serves the need of maintenance of perceived judicial independence which, in turn, shapes the de facto judicial independence. As the arguments by leading scholars suggest that mere constitutional provisions can't secure effective independence; it is obvious that combination of constitutional text along with judicial morality is the key to attaining de facto independence.

Account of The International Scenario

The Sixth UN Congress on the Prevention of Crime and the Treatment of Offenders states that the members of the judiciary are entitled to various freedoms as an individual, however it should not undermine the dignity of their office during as well as after their tenure. The eminent British jurist, Robert Stevens has rightly pointed that there is a potential threat to public confidence if the serving judges are politically motivated in order to curry favour from prospective employers through the judgments they rendered.

The Guide to Judicial Conduct in the UK cautions that:

even after retirement, a former judge may still be regarded by the general public as a representative of the judiciary and, therefore, any activity that might tarnish the reputation of the judiciary should be avoided.

In the same light, the constitutional monarchy, England and Wales prohibits its judges from appointments in government services even after retirement. These prohibitive measures are based on the principle that a person who accepts a judicial appointment abandons not only his current practice, but the possibility of any future one.

The US model fails to acknowledge this principle whereas Canadian law societies impose restrictions on post-retirement services. The recent SNC-Lavalin controversy re-ignited this debate in Canada when the involvement of retired justices in a controversial deal by the government was struck as non-judicial. It was held that involvement of judges in a political issue is against the concept of judicial ethics. Consequently, ethical guidelines for retired judges were sought to be developed by the Federation of Law Societies and the Canadian Judicial Council.

On the contrary, the United States is generally permissive of any activity that a former judge may wish to undertake regardless of the ethical objections from civil society groups. The same practice might fail here because unlike India, the US offers a life-term to judges, thereby keeping financial and other incentives open for them. It is also presumed that older justices would not return to practice succumbing to their old age.

The judges are not absolutely free to return to practice; there is still an excluded category of judges. Judges who dealt with federal bankruptcy and federal claims forfeit their retirement annuity rights if they engage in practice. It is done keeping in mind the principle of conflict of interest which also plays a pivotal role with respect to India.

Analysing the models of different countries with regards to post-retirement appointments, the fundamental issues encountered are apprehension of bias, possibilities of conflict of interest, public confidence in the judicial system and varied post-judicial job opportunities.

A Prospective Approach To Deal With Post-Retirement Appointments

As the public confidence in the judiciary emanates from the public's perception of impartiality in judges; it requires to be maintained through both constitutional and statutory safeguards:
  1. Firstly, a constitutional amendment barring judges from post-retirement employment similar to those on CAG (Art.148 (4)) & chairman of UPSC (Art. 319) can serve this need effectively.
  2. Secondly, as suggested by former CJIs, a mandatory cooling-off period of at least two years post-retirement so as to dissuade judges from ruling in favour of current political dispensation.
  3. Thirdly, the ambit of constitutional prohibition mentioned under Art. 124(7) and Art. 220 shall be broadened to include other offices as well.
However, it is unlikely to happen because many judges themselves consider such options. Fourthly, the retirement age can be adopted from other legal systems.

Now, when it's well settled that post-retirement employment not only undermines judicial independence but also raises concerns of erosion of integrity; the outlook of the judiciary and government should be in harmony with the exalted values of constitutional morality. There is a need of general acceptance and respect for judicial independence such that the judgments cannot be challenged. The apprehension of bias in the minds of the public is also a serious threat in itself which needs to be eliminated to safeguard the values of judicial life.

Written By:

  1. Pratik Kumar ( II Year student at RMLNLU, Lucknow)
  2. Stuti Rastogi ( II Year student at RMLNLU, Lucknow)

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