Gavels
By Dr. Adish C Aggarwala*
I wish to highlight the impact of the appointment of retired judges of the Supreme Court and High Courts as Chairperson and Members of Commissions and Tribunals and other such positions by the Government, on the perception of people about the neutrality of these judges and of the decisions that had been rendered by these judges while they were in service.
The Government is, as is well known, the biggest litigant in the courts. Apart from cases by or against the Government, there are cases involving Ministers and other politically active persons. The judge who is deciding a case is looked on as an impartial umpire who is not approachable by either party. When this judge is, immediately upon retirement, handpicked by the Government to hold a certain position, people cannot help but speculate if the judge was appeasing the Government when occupying the chair to be favourably considered by the Government on his retirement, in return for the favour. People tend to wonder whether the decisions, if any, which the judge may have delivered in favour of the Government or any politician associated with the ruling party, were motivated. The judgments passed by such a judge are closely scrutinised and critics may attack them by insinuating that they have been passed as a trade-off with the ruling dispensation in anticipation of the post-retirement job offer later made to the judge. That Governments tend to reward or penalize judges according to their liking of the judgments they deliver is exemplified and finds its testament in the history of the Indian Supreme Court where Justice H. R. Khanna had to pay the price of his Chief Justiceship for his dissenting opinion that did not find favour with the Indira Gandhi Government. The Hon’ble Judge has unreservedly recounted this in his well-known autobiography ‘Neither Roses Nor Thorns’. Given the record, to say that there is no connection between decisions being passed during the service tenure of a judge and the position being offered to him after retirement would amount to staying in obstinate denial.
This trend started in the year 1988 during the regime of the Congress Party at the Centre. The Consumer Protection Act and later the Protection of Human Rights Act set up Consumer Courts and Human Rights Commissions which were headed by retired judges. There is now a large number of retired Supreme Court Judges, Chief Justices and Judges of different High Courts who are presiding over Commissions and Tribunals in different parts of India, having been appointed by Central and State Governments. While the present Government has not instituted this system and is following the mechanisms envisaged by statutes passed during the earlier regime, there is a crying need to amend the statutes to change the eligibility requirement from a retired judge to sitting judges or practising lawyers.
It is worth noting that of the 21 judges who retired from the Supreme Court from January 2008 to 2011, 18 judges got assignments in different Commissions and Tribunals.
A judge who accepts a post offered by the Government, immediately upon retirement, is seen to have fallen for the bait and is criticized for having placed his personal interest over and above that of the cause of justice. Judges are after all human beings and some of them may turn out to be more ambitious than others. Given the subjective standards of professional ethics and moral rectitude each person possesses, it may not be appropriate to leave the decision to accept an offer to the recipient judge. The system calls for institutional reforms and an objective set of standards to be applied uniformly.
The 14th Report of the Law Commission of India has strenuously recommended changes in the existing practice of offering post-retirement jobs for judges. It has been reasoned that such appointments affect judicial independence and erode the dignity and status of the judiciary.
I endorse the view and wish to suggest that the relevant Acts must be amended to provide for Tribunals and Commissions to be manned by either sitting Judges of Supreme Court/High Courts/District Courts or by eminent lawyers. Where the Rules already provide for the eligibility of sitting judges or of lawyers, the said judges or lawyers should be so appointed instead of making a selection from among retired judges.
It may be noted that the Constitution itself provides for the direct appointment of advocates as Judges of the Supreme Court and High Courts. If advocates can be considered for being appointed as Judges of important Constitutional Courts, there is no reason why they should not be in the zone of consideration for heading Tribunals and Commissions. This will make the adjudicatory process efficient with the fora being manned by an energetic and enthusiastic force of younger presiding officers having longer tenures.
I submit that the services of judges should be profitably used in Courts for longer tenures by raising the retirement age of Supreme Court Judges from 65 years to 68 years and that of High Court Judges from 62 years to 65 years. The retirement age of judges in the district courts may be raised from 60 years to 63 years.
Where sitting judges are diverted to positions in Commissions, Tribunals and Authorities, the seats in the Supreme Court and the High Courts are to be proportionately increased.
The above measures can help in tackling the rapidly rising backlog of cases. By increasing of retirement age, the same judge will continue on the Bench for three more years and will contribute to the system for a longer term, while the quantum of pension remains the same. This will reduce the judiciary’s expenditure burden on the taxpayers by at least twenty per cent.
Apart from the above, there is another phenomenon which is bringing disrepute to the legal profession and particularly the judiciary. This happens when a judge resigns or retires and immediately joins active politics. I wish to refer to the Basic Principles on the Independence of the Judiciary, adopted by the United Nations Congress on September 6, 1985, and endorsed by its General Assembly, which recognizes that judges may enjoy the freedoms afforded to other citizens, but must “conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary”. It is, thus for the judge to keep from any act which may call into question his impartiality. The duty of a judge requires him to make a sacrifice of his aspirations, even if it amounts to self-denial and foregoing of ambitions, for the system of administration of justice to remain robust and impregnable. When a judge resigns to join politics or does so after retirement, there are significant ethical implications with doubts being raised about his impartiality while presiding over cases involving political matters. This is likely to undermine public confidence in the judiciary’s ability to dispense justice fairly.
Unfortunately, former judges venturing into the political arena have been seen on multiple occasions in India. Earlier Mr Baharul Islam, who was Congress Member of Rajya Sabha, became a Judge of the Guwahati High Court. After retirement as Chief Justice of Guwahati High Court, he became a Judge of the Supreme Court. Finally, he resigned as Judge of the Supreme Court and then again became a Congress Member of Rajya Sabha.
Also, Mr Justice Ranganath Misra who was the Chief Justice of India from the year 1990 to the year 1991 joined the Congress Party and was made a Rajya Sabha member from Odisha, after serving as Chairperson of the National Human Rights Commission.
The National Democratic Alliance Government, in March 2020, nominated former Chief Justice of India Mr Justice Ranjan Gogoi to the Rajya Sabha but he did not join BJP and instead chose to remain an independent Member of Parliament.
Recently Mr. Justice Abhijit Gangopadhyay resigned as Judge of Calcutta High Court and within a few days, he joined the Bharatiya Janata Party and now he is contesting from the Tamluk Parliamentary constituency.
In light of similar situations being encountered, the time is ripe for the Government to consider introducing a law to debar former judges from engaging in political activities for at least two years immediately after demitting office as a cooling-off period. This will help prioritize public trust and confidence in the judiciary over the personal interests and ambitions of the judges.
There is a brooding threat to the independence of the judiciary and suitable steps are required so that the faith of the people in the judicial system can be preserved.
On 26.03.2024, I along with other advocates including Senior Advocate Mr Harish Salve and Bar Council of India Chairman Mr Manan Kumar Mishra, had written to the Hon’ble Chief Justice of India raising concerns about the actions of a “specific interest group” which are tainting the image of the judiciary. It was apprised, through the said letter, that the chorus of these disgruntled elements gets louder when cases involving corruption by political figures are taken up. We requested the Hon’ble Chief Justice of India to take proactive measures to safeguard the reputation of the judiciary and also urged the legal fraternity to stand united to support the judiciary – one of the strongest pillars of Indian democracy.
I may also point out that on 24.03.2024, Mr Kapil Sibal, Senior Advocate and former Union Minister for Law & Justice stated in open Court in the Supreme Court that “When the history of this Court will be written, this period will not be golden.” This comment was made by Mr Sibal before a three-judge Bench during a hearing in which the Supreme Court declined to grant bail (on jurisdiction issue) to the Bharat Rashtra Samithi leader K. Kavitha, who had been arrested by the Enforcement Directorate in the Delhi excise policy case.
Unfortunately, a Senior Advocate of his repute and standing should pass such remarks when he failed to secure favourable orders from the Court. Passing such comments is not only contemptuous but also against professional ethics. Every advocate must respect courts and refrain from making statements that may scandalize the courts. I may point out that many seasoned senior lawyers have the support of, or who represent, Opposition leaders. These senior lawyers, for instance, Mr Salman Khurshid and Mr Ashwani Kumar (both served as Union Minister for Law & Justice), Mr Abhishek Manu Singhvi, a former Member of Parliament, Mr Vivek Tankha, MP and Mr P. Wilson, MP, Mr Huzefa Ahmadi, Mr Devadatt Kamat, Mr C.U. Singh, Mr. Harin Raval, and Mr. Ejaz Maqbool argue their cases on merits and do not inveigh against the judicial system only because the Court is not inclined to grant relief to their clients.
It may not be out of place to recall that I had written a letter to the Hon’ble Chief Justice of India for a Suo motu review of the electoral bonds’ verdict. I underscored the procedural error that the Court had not framed ‘substantial questions of law’ for determination, as required by Article 145 (3) of the Constitution of India and Chapter IV (Rule/Para IV) of Handbook on Practice and Procedure and Office Procedure of Supreme Court of India. As an officer of the Court and president of the Supreme Court Bar Association, I highlighted the error of (1) non-framing of substantial questions of law and (2) not providing an opportunity for the donors to be heard per the principles of natural justice, as the said Electoral Scheme contemplated non-disclosure of the identity of the donors. This aspect should have been brought to light by Mr Prashant Bhushan, Advocate-on-Record as it is the duty of Advocates-on-Record to point out that substantial questions of law are required to be framed under the law. However, when, during the hearing on 18.03.2024, the Hon’ble Chief Justice of India declined to go into the issue that I had highlighted, I accepted the said decision with utmost respect to the Court because preservation of the dignity of the Court has to be our predominant interest.
It is for the same reason that the Government must insulate the judiciary from criticism and protect the confidence reposed by the people in our Courts. The Government may consider introducing suitable amendments in the Constitution and the respective statutes for (a) having Tribunals and Commissions presided over (including membership) by sitting judges or by members recruited from the Bar, instead of appointing retired judges to those posts, (b) disallowing former judges from engaging in political activities for at least two years immediately after demitting office, (c) raising retirement age of judges by three years, and (d) increasing the strength of Supreme Court and High Court Judges.
*Senior advocate and president, Supreme Court Bar Association. The above article is excerpted from a letter written by him to the Prime Minister today.
