Post-retirement Appointment of Judges: Facts; Arguments in Favour; Arguments against; Law Commission Report; International Practice; Way Forward
Ranjan Gogoi became the first former chief justice of India to be nominated as Rajya Sabha member. However, it is not the first time, judges Post-retirement are given a post in tribunals, commission, and in central Government. People from various part of the country, colleagues criticizing the nomination and alleging the appointment is a quid pro quo.
Facts regarding judges accepting post-retirement jobs:
- A Vidhi centre for Legal policy's study shows that almost 70 out of 100 Supreme Court retired judges have taken up some or other assignments
- After independence, there have been 44 Chief Justices of India who have accepted post-retirement jobs.
- The central Government gave about 36 percent of the appointments. The jobs mainly to tribunals, commissions, ad hoc committees, and government positions like that of Lokayukta.
- In some cases, judges have been appointed even four months ahead of retirement.
- Time and again, post-retirement jobs come into the limelight.
Arguments in Favour:
- The experience and insights that competent and honest judges learn during their period of service cannot waste after retirement.
- Unlike abroad, higher judiciary judge in India retires at a comparatively young age and is capable of many more years of productive work.
- Most of the posts have a statutory requirement to appoint former judges. For example the National Human Right Commission(NHRC).
- The immediate appointments show that the Government made decisions regarding judges' post-retirement assignments even before retirement.
- Immediate post-retirement appointments of the judges create doubts about their judgments, irrespective of their merits.
- It creates a conflict of interest.
- Justice Krishna Iyer’s observation demonstrates the prospect of post-retirement employment can damage judicial independence. He said, "Judicial afternoons and evenings are sensitive phases. The incumbent being bothered about post-retiral prospects. The executive plays upon this weakness to bend the integrity or buy the partiality of the elderly brethren
- Judiciary and executive should watch each other rather than mutual admirers.
- It reduces public faith in judicial independence.
- In the recent 'master of roster case,' the Supreme Court reiterated that public confidence was the greatest asset of the judiciary
Law Commission Report
- First Law Commission headed by MC Setalvad, recommended that judges of the higher judiciary must not accept any government job post-retirement.
- Such judges should not forget that their conduct after retirement was crucial to preserve people's trust in the judiciary
United States: No Supreme Court judge retires lifelong. It is done to prevent conflict of interest
United Kingdom: Supreme Court Judges retire at the age of 70. No law stopping judges from taking post-retirement jobs but no judge has taken such a post.
- The judiciary needs a mechanism to regulate post-retirement government appointments
- The Tribunals should not be a haven for retired persons.
- The appointment process should not result in decisions being influenced when the Government itself is a party in the case and appointment authority at the same time.
- Former Chief Justice R M Lodha, says that judges should not take post-retirement government posts for at least two years of demitting office. This is necessary to prevent conflict of interest.
- An amendment to the Constitution can be done by incorporating a provision similar to Articles 148 or 319.
- A special law may also be passed by Parliament prohibiting retired judges from taking up an appointment for two years.
- There could be an increase in retirement age
Points to Remember:
Quid Pro Quo: Quid pro quo is a Latin phrase that literally means “ something for something" or "this for that." This phrase is used to signify an exchange of goods, services, favours or any other kind of value
Constitutional provision related to it
Article 80(3): President nominates 12 members to the Rajya Sabha, and they shall consist of persons having special knowledge or practical experience in respect of literature, science, art, and social service.
The former chief justice of India was appointed under the social service category.
Other articles related to post-retirement jobs by the judiciary are
- Article 124 states that "no one who has held office as a Supreme Court judge shall plead in any court or before any authority within the territory of India."
- Article 220 bars High Court judges from pleading before any court, tribunals in India except the Supreme Court and the other High Courts.
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