Post retirement jobs for Judges: Judicial and Political divide calls for Appropriate Amendments

Displaying sharp contrast with his predecessor, CJI Dattu has indicated his willingness to accept the Government’s proposal to be appointed as the Chairperson of the National Human Rights Commission (NHRC). “If I get it (NHRC chairperson’s post), it is fine. If I don’t get it, it is still fine. At present I don’t know who will be appointed. Sab prabhu ki kripa se hota hai (everything happens with God’s willingness). Let us see what happens,” he said. While there is no bar against a former Judge taking up a job right after retirement, the trend raises significant questions that strike at the heart of the independence of the judiciary.During his tenure, CJI R.M. Lodha had mooted a radical suggestion to shield Judges from getting influenced by the lure of post retirement jobs. He had requested the then Prime Minister, Manmohan Singh, to bring in a system under which three months before they actually retired, Supreme Court and high court judges would be given the option to either get full salary (minus other benefits) for 10 more years after their retirement or get pension as fixed under the law.Only those who opt for full salary would be empanelled for selection for posts that require retired Supreme Court or high court judges. However, such judges who opt for full salary would not be allowed to take up any private work, including arbitration.“That little salary burden the country may carry for 10 years. It’s a small price the country pays to get an honest, independent justice system,” he said.He had mooted the proposal to two Prime Ministers and hoped that the required modifications in the laws would be considered and brought in. He had suggested that panels of willing Judges be made at both the State and Central levels. For the State level posts, the Chief Minister could consult the High Court Chief Justice, while for the Centre, the Chief Justice of India would provide the names to be picked for a particular job.Justice Lodha has since turned down all offers to head Commissions and Tribunals, saying that he would wait for two years before taking up a job.However, former Chief Justice of India, P. Sathasivam, had rejected the idea of a cooling off period. “As judges we are getting salaries, perks and everything from the government. Do you mean to say we are showing favors as judges of the SC or HCs. You should not have such apprehensions,” he had stated.Justice P. Sathasivam’s proposed appointment had witnessed opposition, with the National President of People’s Union for Civil Liberties writing to the President of India, asking him to refuse his appointment. The letter had opined that such an appointment, if made will make it look tainted and “will also affect the very integrity, credibility and authority of the institution meant to protect violation of the human rights of citizens.” You may read the petition and LiveLaw article here.All India Bar Association Chairman Adish C. Aggarwala had also filed a petition in the Supreme Court stating that the government’s move is ill advised and unethical. This was considering that when the BJP was in Opposition, it had repeatedly opposed post-retirement jobs for members of higher judiciary. You may read the petition and LiveLaw article here.The plea was later withdrawn, with the AIBA saying that its representation is being considered by the competent authority.With the Judiciary divided over the issue, the ruling NDA’s U-turn has added fuel to the fire. In his capacity as the Leader of Opposition in Rajya Sabha in 2012, Mr. Arun Jaitley had advocated for a cooling off period for Judges, saying that “pre-retirement judgments are influenced by a desire for a post-retirement job”.“Even though there is a retirement age... But the judges are unwilling to retire,” he said at a conference. He had spoken in favor of bringing in judicial reforms in this regard, batting for the National Judicial Appointments Commission. According to him, this was to be done to realize the dream of having an independent, impartial and fair judiciary in the country.He added that it was important that the judiciary distance itself from the electoral circumstances of the day. “The tendency of judges to follow the ballot box, to get carried with the times, has to be avoided. The judiciary is the lifeline of a democracy, and if people lose faith in it, they lose faith in democracy itself,” Mr. Jaitley said.“In that time (during the Emergency), this fault was seen within the judiciary. We must not make this mistake in today's time, and this is not a subject related to a particular party,” Mr. Jaitley said, as was backed by his party president Nitin Gadkari.He adhered to this stance and reiterated the same in February, 2013, when he questioned Justice Katju's criticism of the then Gujarat Chief Minister, Narendra Modi. In an article published in OutlookIndia titled, Quit or Be Sacked, he had written, “I have held a strong view that Judges of the Supreme Court and the High Courts must not be eligible...

Post retirement jobs for Judges: Judicial and Political divide calls for Appropriate Amendments

Apoorva Mandhani

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