Insights into Editorial: Time to raise the bar
Judiciary and Executive should remain mutual watchdogs than mutual admirers, and post-retirement offers can lead to erosion of judicial independence.
It is timely to revisit the debate regarding the propriety of judges accepting post-retirement jobs from Government in the light of recent appointments.
The executive has a major say in appointments to quasi-judicial bodies.
Immediate acceptance of post-retirement assignments certainly creates a dent on public confidence in judicial independence.
As many as 70 out of 100 Supreme Court retired judges have taken up assignments.
They are in the form of assignments to National Human Rights Commission, National Consumer Disputes Redressal Commission, Armed Forces Tribunal, Law Commission of India, etc.
Recent Appointments have to be analysed carefully:
In 2018, Justice A.K Goel was appointed as the Chairman of National Green Tribunal on the same day of his retirement as Supreme Court judge.
Justice R.K Agrawal was appointed as the Chairman of the National Consumer Redressal Commission (NCDRC) May 2018, within a few weeks after his retirement from Supreme Court.
Justice Antony Dominic was appointed the Chairman of the State Human Rights Commission by the Kerala Government, within a week of his retirement as the Chief Justice of the High Court of Kerala during May 2018.
However, Former CJI Justice Lodha had stated that he would not take any post-retirement benefit for a period of two years after retirement.
Is the Appointments to new posts had decided before or post-retirement?
These appointments, which took place within a short span of the retirements of the said judges, have raised quite a few eyebrows.
The immediate appointments suggest that decisions regarding their post-retirement assignments were already taken, at least in principle, by the respective governments even during the tenure of the judges.
Even before their retirements, rumours were rife amongst the members of the bar regarding the finalization of their post-retirement posts.
This certainly casts a cloud over judicial decisions rendered during their tenure in cases involving stakes of the respective governments.
Situations of conflicts of interest:
Judges accepting jobs under the Executive certainly creates situations of conflicts of interest.
It tends to undermine 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.
Government sponsored post-retirement appointments will continue to raise a cloud of suspicion over the judgments the best judges delivered while in service.
This is not to suggest, even remotely, that their judgments are wrong or biased. The only endeavour is to underline the fact that immediate post-retirement appointments of the said judges create a cloud over the sanctity of those judgments, irrespective of their merits.
As it is well settled, the actual existence of bias is not required to spoil or impair the quality or efficiency of the sanctity of judicial process; the perception of bias, founded on grounds which are not too far-fetched and hypothetical, trace of a bad or undesirable substance of judicial process.
The significance of the oft-quoted adage ‘justice should not only be done but also seem to be done’ gets more profound in this context.
When a judge is expecting a post-retirement job from the government, normally he will be in a position not to invite displeasure from the government at least in the year of his retirement.
There is a common complaint that such judges do not dare to invite displeasure from the government by expecting post-retirement jobs
The faith of the people is the bed-rock on which the edifice of judicial review and efficacy of the adjudication are founded.
Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary.
Analysts advocated for a cooling off period for Judges, saying that “pre-retirement judgments are influenced by a desire for a post-retirement job”.
Better suggestion is that for two years after retirement, there should be a gap (before the 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.
Regarding a “cooling off” period for appointment of retired judges as mooted by former CJIs Justice Kapadia, Justice Lodha and Justice Thakur assumes relevance.
There should be a policy decision to introduce a cooling-off period after retirement before taking up new appointments.
It is time for the Supreme Court to invoke the methodology to regulate post-retirement appointments for judges.
Such a process must sufficiently insulate the judiciary from the charge of being a recipient of government largesse.