Job after job

In India, it is only retired judges or retired bureaucrats who are considered embodiments of all virtue and wisdom.

George H Gadbois, JR, after doing an extensive research on the judges of the Indian Supreme Court from 1950 to 1989, wrote, “India is a land of commissions- a ‘commission culture’ was the term used by one Chief Justice of India. Commissions are a highly institutionalised tradition, a deeply ingrained feature of the political culture. The British made occasional use of judge-staffed commissions, but after independence they have exploded in number.

At any time dozens are functioning, providing many job opportunities for retired Supreme Court of India and high court judges…Not all commissions are established for noble purposes. Retired judges have acknowledged that some they headed were politically motivated, witch-hunts aimed at harassing political rivals.”

The debate over the post-retirement assignment of judges has been going on for decades as it is felt that it subverts the independence of the judiciary. BJP leader Arun Jaitley echoed this sentiment while addressing the lawyers’ forum of his party. Without mincing words he candidly said, “even though there is a retirement age, judges are not willing to retire.

Pre-retirement judgments are influenced by post-retirement jobs.” He added that when he was Union law minister he avoided meeting retiring judges as they handed over their bio-data for some assignment. The statement is offensive but incontrovertible. 18 out of 21 Supreme Court judges who retired since 2008 got jobs in different government commissions and tribunals.

Justice Markandeya Katju was appointed chairman of the Press Council of India within days of his retirement. Justice Mukundkam Sharma was nominated to head the central government appointed Vansadhara Water Dispute Tribunal at least four months prior to his retirement on September 18, 2011.

People hardly know about this river. Justice H K Sema was appointed the chairman of the UP Human Rights Commission by then UP chief minister Mayawati immediately after his retirement from the Supreme Court and the state government issued a special order that his office would be located in Noida and not in Lucknow. Curiously, earlier Justice Sema, while in the Supreme Court, reversed most of the adverse findings against Mayawati by the Allahabad high court.

It is not difficult to establish the quid pro quo between the government and the judge getting post-retirement jobs. Some judges move from one commission to another, and sometimes head more than one at a time. PB Gajendragadhkar headed six different official bodies while JL Kapur headed five. Judges who antagonise the government by their bold judgments hardly get any such offers.

None of the seven judges who ruled in favour of the basic structure doctrine in Kesavananda Bharati was asked to head any commission or tribunal nor was Justice K Subba Rao or Justice M Hidayatullah during Indira Gandhi’s first tenure. However, the Janata Party’s government offered jobs of one kind or another to all the seven judges.

Minor amendment

It is true that some acts provide that only former judges can head the official tribunal or commission or regulatory body. It is argued that if a ban is imposed on post-retirement jobs of judges, these acts would become unworkable. This problem can be solved by making a minor amendment in the act which says that it will be headed by one who has been a judge of the Supreme Court/high court. Instead of ‘who has been’, it can be provided ‘who is’ so that only a serving judge becomes head or member of a commission or tribunal.

Though the Constitution provides that an eminent jurist can be appointed judge of the Supreme Court, this provision has so far remained a dead letter though in the USA, Canada, etc., law professors have been made chief justice/judge of the Supreme Court. Many countries like the USA nominate law professors to represent their countries in the International Court of Justice (ICJ), The Hague.

However, in India, it is only retired judges or retired bureaucrats who are considered embodiments of all virtue and wisdom. Still in many cases, there is no result. Eradi Commission, set up in 1986 to resolve water disputes between Haryana and Punjab, could not give any final report in 24 years, much less resolve the dispute.

Recently, the Supreme Court ruled that the information commissions should be manned by judges and the Central Information Commission should be headed by a former SC judge and the state information commission by a former chief justice of the high court. It further directed that all benches of the commission would comprise two members, one of whom would be judge as it is a quasi-judicial body.

This is a clear case of over-reach as the judiciary has wangled the powers of the executive most blatantly. A weird justification is given to have judges as the commission decides cases. But does it require legal expertise? If court ratiocinates like this, then every government department/ministry should be manned by judges as bureaucrats/ministers also take decisions. Courts adjudicate only after those decisions are challenged.

The ideal situation will be to impose a flat ban the post-retirement jobs of judges. Now, former judges are making fortunes through arbitration. Justice J. S. Verma’s comment is apposite: “Some recent instances where sitting judges have been recommended for appointment to government posts much before they actually retire is very disturbing.

I find that unacceptable. I have always held that post-retirement conduct of judges should be regulated to ensure that they have not been influenced by any extraneous factor of post-retirement jobs during their tenure. Any chamber practice or arbitration of private disputes should not be allowed. To achieve this, Article 124(7) must be amended.”

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