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SHOULD JUDGES ACCEPT OFFICIAL POSTS AFTER RETIREMENT?
Relevance: GS 2 – Separation of powers between various organs dispute redressal mechanisms and institutions; Structure, organization and functioning of the Executive and the Judiciary
Why in the News?
- Abhijit Gangopadhyay resigned as a judge of the Calcutta High Court.
- Hours after his resignation, he announced his decision to join the Bharatiya Janata Party (BJP).
- Some oppose judges holding official posts after retirement, fearing it could compromise judicial independence.
- Others, including government officials, argue that such posts demand individuals with the highest integrity and that the Constitution does not prohibit this practice.
Should Justice Abhijit Gangopadhyay’s Decision Be Considered a Breach of Judicial Conduct?
- Justice Abhijit Gangopadhyay’s decision is not prohibited by law, but it raises concerns about judicial conduct.
- The manner of Justice Gangopadhyay’s resignation and subsequent political affiliation does not uphold judicial independence.
- Time for Judicial Reforms?
- Justice Deepak Gupta believes it’s time for the Supreme Court to restate the values expected from judges of superior courts.
- The Bangalore Principles of Judicial Conduct (2002) should be revisited and reworked.
- It is not realistic to expect the government to impose a ban or cooling-off period, as they benefit from the current system.
- The judiciary should establish guidelines on post-retirement or resignation behavior for judges.
Perspective on Judicial Posts After Retirement
- Justice Gupta states there is no constitutional restriction on judges holding official posts post-retirement.
- It is deemed impractical to expect judges to abstain from all official posts after retiring.
- Some judges possess unique qualifications suitable for certain official posts.
- Concerns Regarding Resignation Timing
- Justice Gangopadhyay resigned prematurely to contest the Lok Sabha elections.
- This action raises concerns about the potential influence of the ruling party at the Centre in persuading a judge to resign for political reasons.
- Reasserting Judicial Values and Proposing a Cooling-Off Period
- The judiciary should reaffirm its principles regarding post-retirement or post-resignation conduct.
- Consideration should be given to imposing a cooling-off period of two to three years before judges can engage in active politics.
- New judges might be required to provide an undertaking stating they will not participate in active politics for a specific period after retirement or resignation.
Recommended Duration of Cooling-Off Period
- The Law Commission has previously recommended implementing a cooling-off period.
- It is suggested that the cooling-off period should be at least two years.
- Rationale for the Duration
- A two-year cooling-off period allows judges retiring from the High Court at 62 years old to still pursue an active career afterward.
- Similarly, retired Supreme Court judges would be 68 years old when the cooling-off period ends.
- Opposition to Post-Retirement Appointments
- A strong opposition to post-retirement appointments for judges, as stated in their minority judgment in Roger Mathews v. South Indian Bank Ltd (2019).
- Concerns About Public Perception
- There may be a perception among the public that judgments rendered near retirement are influenced by the expectation of post-retirement benefits.
- Accepting post-retirement appointments from the government may raise doubts about the impartiality of judicial decisions.
- The speaker emphasizes the need for judges to avoid seeking post-retirement sinecures in the corridors of power.
Influence of Judicial Decisions on Post-Retirement Benefits
- There is a public perception that judges favoring the government in crucial cases are more likely to secure post-retirement benefits.
- This perception raises concerns about the impartiality and integrity of judicial decisions.
- Remedy for the Issue
- The Supreme Court has previously shown reluctance to frame guidelines on this matter.
- Central legislation could potentially address this issue, but the government is unlikely to enact such a law.
- Alternative Solutions and Views
- Any competent lawyer could effectively perform the tasks currently reserved for retired judges, emphasizing the need for integrity and competence over mere judicial experience.
- It is unfortunate when judges seek the trappings of power, as it undermines the integrity of the judiciary.
- Proposal for Judicial Appointments
- The power to appoint or recommend appointments should be vested within the judiciary itself to mitigate potential biases.
- A fair and transparent method for judicial appointments can be devised.
- The Chief Justice could be informed of upcoming vacancies by the government, and the next available judge could be allocated the respective position.
Increasing Retirement Age as a Solution
- This approach may disadvantage a generation of lawyers with judicial aspirations.
- Given the increased life expectancy and better healthcare, judges performing well might be allowed to continue beyond the existing retirement age.
- Comparison with U.S. Lifetime Tenure for Supreme Court Justices
- The U.S. is reconsidering the concept of lifetime appointments for Supreme Court justices.
- One advantage of lifetime appointments is the opportunity for younger judges to shape the nation’s laws for a more extended period.
- Implementing lifetime appointments for Supreme Court judges in India could potentially burden the institution and hinder the entry of new talent.
- Views on Retirement Age Parity
- A higher retirement age is supported, but it should be consistent for both High Court and Supreme Court judges.
- Currently, senior judges in the Supreme Court have undue influence over High Court judges due to differing retirement ages.
- According to the constitutional scheme, Chief Justices of High Courts should be considered equal to Supreme Court judges, but this equality is not reflected in reality.
Current Practice of Appointing Retired Judges to Tribunals and Commissions
- This practice makes retired judges indispensable for such appointments.
- Proposal for a Common Service or Written Test
- A common service or written test is suggested as a potential alternative to the current practice.
- Concerns are raised about the effectiveness of a written test for judges at an advanced age.
- Over-reliance on service jurisprudence could result in judicial bureaucrats rather than independent and service-oriented individuals.
- Alternative Approach to Tribunal Appointments
- Different tribunal services could be established, such as a tax administrative service for tax-related matters and a service tribunal service for the Central Administrative Tribunal (CAT) and State Administrative Tribunals (SAT).
- Young individuals could join these services and progress through the ranks to eventually lead these institutions.
- The current practice of making lateral appointments from the High Courts or the Supreme Court to head these bodies should be reconsidered.
Post-Retirement Monetary Perks for Judges
- Justice Gupta believes that increasing post-retirement monetary perks such as pension may not reduce the reliance of judges on post-retirement appointments.
- Motivation Behind Post-Retirement Appointments: Judges may not seek post-retirement jobs primarily for monetary reasons but for the power associated with such positions.
- Retired judges, if competent, can secure sufficient work as arbitrators or legal advisors post-retirement.
Mains question
Discuss the implications of retired judges joining political parties or accepting post-retirement governmental appointments. Suggest reforms to maintain judicial independence and integrity. (250 words)
