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
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:
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
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:
- 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.
- 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.
- 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:
- Pratik Kumar ( II Year student at RMLNLU, Lucknow)
- Stuti Rastogi ( II Year student at RMLNLU, Lucknow)