Debate on Post-Retirement Appointments for Judges

• 02 Apr 2024

For Prelims: Supreme Court, High Court, Chief Justice of India, Collegium System

For Mains: Ethical Implications of Resignation of a Sitting Judge, Evolution of the Collegium System and its Criticism.

Source: TH

Why in News?

The practice of judges accepting official posts after retirement has become a subject of debate, particularly in light of recent events where a former judge joined a political party shortly after resigning from the judiciary raised questions about judicial conduct.

What are the Constitutional Provisions Related to Retired Judges in india?

• Constitutional Provisions:
  • Article 124(7): It prohibits a retired judge of the Supreme Court from practising before any court or authority in India.
    • This restriction is aimed at maintaining the independence and impartiality of the judiciary.
    • However, the Constitution does not explicitly prohibit retired judges from accepting post-retirement assignments or appointments.
  • Article 128:
    • The Chief Justice of India, with the President's consent, may request a retired Judge of the Supreme Court, Federal Court, or High Court qualified for Supreme Court appointment to sit and act as a Supreme Court Judge.
  • Article 220:
    • It bars High Court judges from pleading before “any authority in India except the Supreme Court and the other High Courts.”
• Related Cases and Recommendations:
  • Bombay Lawyers Association v. Union of India: The Supreme Court dismissed a public interest litigation (PIL) petition seeking a mandatory cooling-off period of two years for retired judges before accepting post-retirement appointments.
    • The apex court stated that it was not within the court's jurisdiction to mandate a cooling-off period.
    • While dismissing the PIL, the court underscored the importance of enacting legislation to regulate post-retirement appointments for judges, thereby leaving the matter to the discretion of the concerned judge or legislative intervention.
  • 14^th Law Commission: The 14^th Law Commission, headed by MC Setalvad, had recommended that judges should not take up post-retirement jobs from the government; it also recommended setting the Cooling-off Period after retirement.
    • However, there is no specific rule that prevents judges from accepting such positions.

What are the Arguments Related to Post-Retirement Appointments for Judges?

• Arguments in Favour:
  • Utilisation of Expertise: Proponents argue that judges possess valuable expertise and experience that can be beneficial to the government and public service sectors.
    • By accepting official posts post-retirement, judges can contribute to policy making and governance based on their deep understanding of legal principles and judicial processes.
  • Ensuring Integrity in Official Positions: Supporters of post-retirement appointments argue that judges are held to high standards of integrity throughout their careers, and this integrity is likely to carry over into their roles in official positions.
    • By appointing retired judges to key positions, there's an assurance of upholding ethical standards and impartiality in decision-making.
  • Fulfilling Vacancies Requiring Specialised Knowledge: Certain official positions require specific expertise or understanding of legal intricacies, which retired judges are well-equipped to provide.
    • These appointments ensure that crucial positions are filled by individuals with deep insights into legal matters, contributing to effective governance and administration.
  • Maintaining a Pool of Talent: Offering post-retirement appointments ensures that the country retains the knowledge and skills of seasoned jurists.
    • It allows for the continued contribution of judicial veterans to public service beyond their tenure on the bench.
• Arguments Against Post-Retirement Appointments:
  • Risk of Compromising Judicial Independence: Critics argue that accepting official posts after retirement may compromise judicial independence, as it could create perceptions of favouritism towards the appointing authority.
    • This quid pro quo undermines public trust in the judiciary and raises questions about the impartiality of judicial decisions made during their tenure.
    • The Restatement of Values of Judicial Life emphasises the importance of impartiality in judicial conduct. Judges must not only deliver justice but also ensure that their actions uphold public confidence in the judiciary's impartiality.
      • The Supreme Court of India adopted the Restatement of Values of Judicial Life in 1997, which outlines ethical standards for judges.
      • It emphasises the importance of impartiality, avoiding conflicts of interest, refraining from seeking financial benefits, and being conscious of public scrutiny.
  • Potential for Conflict of Interest: There's a concern that post-retirement appointments may create conflicts of interest, especially if the former judge's decisions or rulings during their tenure benefit the appointing authority.
    • This could erode public confidence in the judiciary and raise doubts about the motivations behind judicial decisions.
  • Destabilising the Judiciary: These appointments are seen as part of a larger strategy to undermine the judiciary's independence by gradually eroding its authority and integrity.
    • By enticing judges with political appointments, the government risks compromising the judiciary's ability to act as a check on executive power.

Position	Appointment Procedure
Chief Justice of India (CJI)	Article 124 (2), vests power on the President to appoint judges of the Supreme Court including the CJI, by warrant under his hand and seal. The outgoing CJI recommends his successor, typically based on seniority.
Supreme Court Judges	They are also appointed by President. The proposal is initiated by the CJI. The CJI consults other Collegium members and the senior-most judge of the court from the relevant High Court, Opinions are recorded in writing. The recommendation is forwarded to the Law Minister, who advises the Prime Minister to advise the President.
Chief Justice of High Courts	The Chief Justice and Judges of the High Courts are to be appointed by the President under clause (1) of Article 217 of the Constitution after consultation with: The CJI and the Governor of the state concerned.

Way Forward

• Legislative Action: The government should prioritise the enactment of a comprehensive law to regulate post-retirement assignments for judges of constitutional courts.
  • This legislation should establish clear guidelines, including provisions for cooling-off periods and restrictions on certain appointments, to uphold judicial independence.
• Consultation with Judiciary: Before drafting the law, the government should engage in meaningful consultations with the judiciary, legal experts, and stakeholders to ensure that the proposed regulations are balanced and effective.
• Implementing Cooling-Off Periods: Consideration can be given to implementing a cooling-off period, as recommended by the Law Commission of India.
  • This period would provide a buffer between a judge's retirement and any potential post-retirement appointments, minimising the risk of conflicts of interest.
• Judicial Ethics and Code of Conduct: The judiciary should reinforce its commitment to upholding ethical standards and maintaining the integrity of the judicial system.
  • Clear guidelines and a code of conduct should be established for judges regarding post-retirement engagements to prevent any perception of impropriety.
• Learning from International Best Practices: Drawing upon international best practices and experiences, India can learn from other countries' approaches to regulating post-retirement assignments for judges.
  • In the United States, Supreme Court judges do not retire lifelong to prevent conflict of interest.
    • In the United Kingdom, Supreme Court judges retire at the age of 70. There is no law preventing judges from taking post-retirement jobs, but no judge has done so.
  • Comparative studies and engagement with global legal experts can provide valuable insights for refining domestic regulations.

Drishti Mains Question:

Q. How can legislative measures, judicial input, and cooling-off periods bolster judicial integrity amidst post-retirement appointments for judges in India?

UPSC Civil Services Examination, Previous Year Question (PYQ)

Prelims

Q. With reference to the Indian judiciary, consider the following statements: (2021)

1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with the prior permission of the President of India.
2. A High Court in India has the power to review its own judgement as the Supreme Court does.

Which of the statements given above is/are correct?

(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither I nor 2

Ans: c

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Mains

Q. Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’ with reference to appointment of judges of higher judiciary in India. (2017)