Jaitley comments revive demand for national judicial panel

‘Heaven is above all yet; there sits a judge, That no king can corrupt.’ (The Life of King Henry the Eighth); ‘It doth appear you are a worthy judge; You know the law, your exposition Hath been most sound.’ (The Merchant of Venice)

Since the days when William Shakespeare (1564-1616) wrote these words, or even before that, the role of the judges had been a talking point in many parts of the world. In the Indian context, a debate on the post-retirement of judges was reignited last week following the comments of BJP leaders Arun Jaitley and Nitin Gadkari on the penchant of a section of judges’  “clamour” for government assignments after retirement. In a telling remark that is expected to keep the debate on for a long time,  Jaitley, himself an eminent lawyer, told a conference organised by the party's legal cell:  “There are judges who know the law and those who know the law minister. When I was the Union law minister, I used to be afraid of meeting retiring judges for fear that they would hand me in their bio-data...pre-retirement judgments are influenced by post-retirement jobs.”

 Jaitley also suggested the constitution of a National Judicial Commission which would comprise representatives of the judiciary, government and society to keep a watch on issues related to appointments and complaints against judges. He supported the idea of increasing the tenure of the judges or providing them pensions equivalent to their last-drawn salary. BJP president Gadkari took the argument forward as he sought a ‘two-year cooling-off period’ after retirement if any judge is to be appointed to a government panel.

Jaitley’s observations naturally sparked off a debate within the judiciary and outside on issues of ethics, process of appointment of judges etc and must have caused discomfiture within judiciary that is expected to maintain highest standards of integrity.

Jaitley’s comments came just a few weeks after the apex court ruled that the country's information commissions – at the Centre and in the states -- must be headed by either a retired or serving judge from a high court or the Supreme Court.

According to one estimate, 60 SC judges, including 10 chief justices, have retired since 2000. Of them, 47 got post-retirement assignments either from the Centre or different state governments. Another data says of the 21 judges demitting office after 2008, 18 got into new jobs, appointed by government. But then, in most of these cases, the posts are statutorily meant only for serving or retired SC or high court judges.

Law to bar retired judges

That this debate is on almost since Independence is clear from a 1958 Law Commission report, under the chapter, ‘Reforms of the Judicial Administration,’ observed that “There can be no doubt that it is clearly undesirable that Supreme Court judges should look forward to other government employment after their retirement...We are clearly of the view that the practice has a tendency to affect the independence of judges and should be discontinued.” It even suggested a law be enacted to bar retired judges being appointed to government jobs.

Many eminent judges and jurists argue for expeditious setting up of a National Judicial Commission for appointment of judges to SC, HCs and tribunals. At present,  judges are appointed through a Collegium, consisting of five senior most judges at SC or HCs. Several former judges have called for setting up of a  National Judicial Commission to appoint judges. Former chief justices of India J S Verma, M N Venkatachalaiah and V R Krishna Iyer wrote to prime minister Manmohan Singh on April 27, 2011 seeking NJC. Justice A K Ganguly, the recently retired but appointed to the West Bengal Human Rights Commission, who delivered the famous 2G judgement, is not convinced about it saying there may be forces acting on appointments even after NJC was set up. Eminent lawyers Shanti Bhushan and Harish Salve, however, support the NJC demand.

Another former CJI Justice V N Khare has said it was “not just painful but disgusting to read Jaitley’s statement. Today there are about 340 retired HC judges and about 100 retired SC judges. How many judges are in jobs? You cannot say every judge clamours for post-retirement jobs.”  Former Delhi high court chief justice A P Shah is completely opposed to and has sought a ban on post-retirement government jobs for judges, while former attorney-general Soli J Sorabjee is in favour of a cooling off period.

For any of these proposals to be implemented to the sensitive judicial posts, Constitution amendments are required. The ‘cooling-off period’ concept can be introduced through an amendment to the Articles 148 or 319 of the Constitution. Or,  current laws relating to appointment of retired SC or HC judges can be amended. There is also a proposal to increase retirement age of judges so that they are available for appointment to these posts while in service.

Says Union law minister Salman Khurshid: “ It is a point of view that retired judges shouldn’t be made to head the tribunals. But if one has to change it, then talks are needed.” The current stand of the main Opposition BJP may have a fall-out on the Constitution amendment to increase the retirement age of HC judges from 62 to 65 years, pending before the Lok Sabha for want of a two-thirds’ majority.