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Question
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“Post-retirement jobs for Judges in India can harness their talent and experience, but it may also affect the independence of the judiciary”. Examine.
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Solution
Answer:
Introduction:
Judicial independence is an inevitable feature of Indian democracy. Judicial independence not only has to be protected from the executive’s efforts to control the judiciary but also from the possible bending of judges too. Recently, there have been many controversies whenever a judge accepts post-retirement jobs like Governorship, Rajya Sabha Membership etc.
Body:
Why should judges not accept post-retirement jobs?
Compromise with judicial independence: Accepting post-retirement jobs raise questions on judicial independence when positions are taken after some important decisions.
Separation of Power: Justice should not only be done but seen to be done. Here, accepting and offering post-retirement jobs bridges the constitutional distance which the executive and judiciary need to have, creating the perception of bias.
Conflict of interest: Positions at tribunals and constitutional bodies create conflict as Government itself is a litigant and appointment authority at the same time. The first Law Commission, headed by MC Setalvad, had recommended that judges of the higher judiciary should not accept any government job after retirement.
The politicisation of judiciary: The acceptance of post-retirement jobs leaves newly retired judges open to political criticism from the opposition, who use it to cast aspersions on the Court, the Judicial system, and the judgments and orders passed by these judges while in office
Erode people’s trust: The judiciary thrives on perception and faith. Such actions can shake people’s confidence and faith in the independence of the judiciary.
Arguments for allowing judges to accept such positions:
Legal knowledge and expertise: The valuable experience and insights that judges acquire during their period of service can be utilised after retirement.
No constitutional bar: Constitution doesn’t bar them from accepting post-retirement posts.
Statues asking for retired judges on posts: These posts are generally constitutional or of quasi-judicial bodies, whose laws more often than not mandate that only retired judges can occupy them.Ex. NHRC chairman.
Some measures to strike a balance:
Cooling off period: Many have suggested that there should be a minimum cooling-off period of 2 years post-retirement.
Robust legislation : A law can be made to set up a commission of retired judges to make appointments of competent retired judges to tribunals and judicial bodies. In the meantime, judges themselves can fill the legislative void by giving suitable directions
Envisioning a transparent process: Former Chief Justice R M Lodha had suggested that before a judge retires, the government should provide the option of either being a pensioner or continue to draw an existing salary. If they opt for pension, government jobs are out but if they opted for full salary, that name should be put in a panel. When a vacancy arises, these persons can be considered and the process becomes devoid of allegations of appeasement, favouritism etc.
Conclusion:
It is the right time to bring transparency in appointments of judges so that judges with impeccable background and strong conscience can be selected and at the same time reforming the appointment process of institutions that ensures post-retirement appointments do not create incentives in judicial decision-making.
Introduction:
Judicial independence is an inevitable feature of Indian democracy. Judicial independence not only has to be protected from the executive’s efforts to control the judiciary but also from the possible bending of judges too. Recently, there have been many controversies whenever a judge accepts post-retirement jobs like Governorship, Rajya Sabha Membership etc.
Body:
Why should judges not accept post-retirement jobs?
Compromise with judicial independence: Accepting post-retirement jobs raise questions on judicial independence when positions are taken after some important decisions.
Separation of Power: Justice should not only be done but seen to be done. Here, accepting and offering post-retirement jobs bridges the constitutional distance which the executive and judiciary need to have, creating the perception of bias.
Conflict of interest: Positions at tribunals and constitutional bodies create conflict as Government itself is a litigant and appointment authority at the same time. The first Law Commission, headed by MC Setalvad, had recommended that judges of the higher judiciary should not accept any government job after retirement.
The politicisation of judiciary: The acceptance of post-retirement jobs leaves newly retired judges open to political criticism from the opposition, who use it to cast aspersions on the Court, the Judicial system, and the judgments and orders passed by these judges while in office
Erode people’s trust: The judiciary thrives on perception and faith. Such actions can shake people’s confidence and faith in the independence of the judiciary.
Arguments for allowing judges to accept such positions:
Legal knowledge and expertise: The valuable experience and insights that judges acquire during their period of service can be utilised after retirement.
No constitutional bar: Constitution doesn’t bar them from accepting post-retirement posts.
Statues asking for retired judges on posts: These posts are generally constitutional or of quasi-judicial bodies, whose laws more often than not mandate that only retired judges can occupy them.Ex. NHRC chairman.
Some measures to strike a balance:
Cooling off period: Many have suggested that there should be a minimum cooling-off period of 2 years post-retirement.
Robust legislation : A law can be made to set up a commission of retired judges to make appointments of competent retired judges to tribunals and judicial bodies. In the meantime, judges themselves can fill the legislative void by giving suitable directions
Envisioning a transparent process: Former Chief Justice R M Lodha had suggested that before a judge retires, the government should provide the option of either being a pensioner or continue to draw an existing salary. If they opt for pension, government jobs are out but if they opted for full salary, that name should be put in a panel. When a vacancy arises, these persons can be considered and the process becomes devoid of allegations of appeasement, favouritism etc.
Conclusion:
It is the right time to bring transparency in appointments of judges so that judges with impeccable background and strong conscience can be selected and at the same time reforming the appointment process of institutions that ensures post-retirement appointments do not create incentives in judicial decision-making.
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