Cool off after sunset, judges

CHENNAI: It is said in a lighter vein that there are two types of judges in our judiciary.

The first type is the ‘forward-looking judges’ and the second one is the ‘looking-forward judges’. Unlike America, where there is a lifetime appointment given to Supreme Court judges, in our Constitution, the Supreme Court judges are retired at the age of 65 and the High Court judges at 62.

Article 224A of the Constitution provides for the appointment of retired judges as ad hoc judges in HCs to help deal with pendency; that exercise is yet to be done.

The judges, once retired are entitled to a pension, family pension, medical reimbursement, allowance for engaging support staff, and telephone allowance and in the case of Supreme Court judges, they are entitled to secretarial assistance also. Besides this, the Supreme Court judges are entitled to security. While the HC judges can apply for conferment of Senior Advocate status and also practice before the Supreme Court, the Supreme Court judges cannot practice law before the court. Yet they do chamber practice. Their legal opinions are quite expensive and some charge even Rs 20 lakh per opinion.

In earlier days, the legal opinions obtained from retired Supreme Court judges used to be enclosed along with court appeals so that they may influence the hearing judges. These exercises are done by retired Supreme Court judges even though Article 124(7) prohibits them from pleading or acting before any court or before any authority within the territory of India. The Supreme Court has issued an order that no such opinions should be filed along with the legal papers.

Besides these opportunities, the retired judges are appointed to head or serve on Commissions of Inquiry, election panels or boards, and also as arbitrators. This apart, there are hundreds of tribunals created in which invariably the chairperson or the judicial members are retired judges only. In such cases, the respective parliamentary laws or state legislations provide the retirement age anywhere from 65 to 72 years. There are also posts available with Law Commissions, Lok Pal, Lok Ayukta, human rights commissions, national SC, ST and BC commissions etc. This apart, there are also jobs at the International Court of Justice, as ambassadors to different countries, and the more pliable ones as Governors of states. Those who do not want gubernatorial posts can also opt to enter politics and contest elections for Parliament and those who hate elections can also get nominated as Members of Parliament.

With the plethora of such post-retirement avenues, the clamour for getting into one of those tribunals starts while one is in service itself. One HC judge who wanted to become a member of a tribunal attended an interview while in service before a committee in which one of them was a Union Government secretary and an important case of that department was pending before that judge. Litigation filed against that episode was dismissed on a technicality.

Arun Jaitley, former BJP law minister, while speaking to the members of the BJP legal cell in October 2012, said, “There are two kinds of judges: those who know the law and those who know the law minister... we are the only country in the world where judges appoint judges... even though there is a retirement age, judges are not willing to retire... pre-retirement judgments are influenced by post-retirement jobs.”

Former BJP president and Union minister Nitin Gadkari wanted a prescription of a cooling period. He said in the same meeting: “My suggestion is that there should be a gap for two years after retirement (for any appointment) because otherwise the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise”.

A team of two authors from the Singapore Management University and the University of Portsmouth published their study on ‘Jobs for Justices: Corruption in the Supreme Court of India’, which found that authoring the judgment in one important case decided in favour of the government increases the likelihood of being appointed to a post-retirement job by 13-17%.

They also found that the government’s chance of winning a notable case "more than doubles" when it is decided by a bench where both judges are retiring shortly before an election, compared to a bench where both judges are retiring long before an election.

Apart from individual judges angling for post-retirement jobs, the judiciary itself insulated from within and in one voice has expanded its positions in tribunals and forums by interpreting the parliamentary law contrary to the language used therein. Section 6(2) of the Legal Services Authority Act, 1987 provided either sitting or retired judges to be the chairperson of the legal aid services authority. Notwithstanding the language used, the Supreme Court restricted the provision and held only a sitting judge can be the chairperson whether it is national or state legal aid service authorities (2007). Chief Justice PN Bhagwati, considered the father of the legal aid movement, wanted to serve after his retirement in legal aid services but was denied the opportunity. This was recorded in his biography.

In their ever-expanding territorial concur of post-retirement positions, the Supreme Court strangely interpreted Section 15 of the Right to Information Act. It held that the Chief Information Commissioner as well as State Information Commissioners should have judicial background contrary to the language found in the section (September 2012). This judgment brought about a complete breakdown in the working of various State Information Commissions. Subsequently, the Union of India filed a review to change its interpretations. That review was allowed after one year (September 2013). Thus, the Supreme Court contributed to the non-working of a commission for a considerable period.

Besides this, in framing the rules for appointing various tribunals, the Supreme Court also started issuing different orders starting with the case filed by the Madras Bar Association and continued with the series of orders in Roger Mathew’s case. The difference of opinion between the judiciary and executive government in framing the rules for tribunal appointments has also virtually brought a stalemate and it is yet to be resolved.

In Fenn Walter’s case (2002), the Supreme Court warned the sitting judges from accepting Commissions of Inquiry appointments and held that should they feel acceptance of the appointment is necessary, then they should resign as high court judges. This was on the ground that the report of the commissions is to be reviewed by the high courts in case of challenges and it may not be proper for the sitting judges to accept commissions of inquiry.

When the former Chief Justice of India, spoke on the present arbitration world, he remarked the space occupied by the retired judges resembles an old boys club. He also said that it reflects a lack of diversity even though there were other qualified candidates available.

Thus, a time has come to think of putting a stop to judges being active after retirement, or in the very least, create a cooling-off period from the date of retirement until the date of assumption of a new assignment.

—The writer is a retired judge of the Madras High Court