Page 27 - 31OCT2018E

COLUMN

My lords, judges shouldn’t judiciary to executive began quite early. their retirement or get pension as fixed vious stance has been exemplified by the
The ruling NDA’s U-turn from its pre-
under the law. It was further stipulated
The appointment of Justice Fathima Bee-
be rewarded for verdicts vi as Governor of Tamil Nadu in 1997 is that only those who opted for full salary appointment of former CJI as governor
would be empaneled for selection for
of Kerala in late 2014 and some recent
said to be the first instance of a Supreme
Court judge being made a governor. As posts that require retired Supreme Court such instances. On July 6this year, Justice
per media reports, the then Bombay or high court judges. However, such A.K Goel was appointed as the Chairman
Justice Sathasivam may be the first Supreme Court Chief Justice to occupy the post of High Court Chief Justice M.C. Chagla judges who opted for full salary would of National Green Tribunal (NGT) on the
HARD Governor after retirement, but bonhomie between the Executive and the Judiciary has resigned in 1959, to become the ambas- not be allowed to take up any private same day of his retirement as Supreme
work, including arbitration.
sador to the US. In 1968, the then sitting
Court judge. Justice R.K Agrawal was
LINE haunted almost all dispensations of the past and present Chief Justice of India Subba Rao resigned appointed as the Chairman of the
to contest the election to the office of the Modi govt’s stance National Consumer Redressal Commis-
ANIL SINGH uggestion by the Bar Council of raise significant questions that strike at the President but lost. In 1970, retired Chief The BJP-led NDA government headed by sion (NCDRC) during last week of May,
India (BCI) on October 1, to the heart of the independence of the judiciary. Justice of India M. Hidayatullah contest- prime minister Narendra Modi is said to within a few weeks after his retire-
outgoing Chief Justice of India ed for the office of Vice-President and have appointed at least 12 retired judges ment from Supreme Court. Some legal
The columnist is Dipak Misra not to accept any Executive-judiciary bonhomie won. In 1973, Justice K.S. Hegde resigned on various government posts after com- experts opine that these appointments,
Executive Editor of S post-retirement job offered by Media reports attest to the existence, to as a judge of the Supreme Court, got ing to power in 2014. The appointment of which occurred within a short span of
News24 news the Central government has seemingly some extent, of bonhomie between the elected as a member of the Lok Sabha former Chief Justice of India P. Sathasi- the retirements of the said judges, have
channel. The views stoked the ongoing debate — ‘Should judges Executive and the Judiciary as far as offer of and became its Speaker in 1977. In 1988, vam as the Governor of Kerala in the last generated doubts by suggesting that de-
here expressed are the opt for post-retirement jobs or should they jobs to judges after retirement is concerned. former Chief Justice of India Ranganath quarter of 2014 by the Modi government cisions regarding their post-retirement
author’s own not’. While averring that acceptance of any Media reports, based on a study undertaken Mishra was appointed a Rajya Sabha MP triggered a debate in legal and politi- assignments were already taken, at least
assignment by a judge after his retirement by the legal think-tank, Vidhi Centre for Le- by the Congress. cal circles. Media reports reveal as to in principle, by the Central government
leads to raising of fingers about the bona gal Policy, make it discernible that as many Media reports indicate efforts un- how Opposition parties were quick to even during the tenure of the judges.
fides of this assignment, the BCI advice reit- as 70 of over 100 retired Supreme Court dertaken to neutralize the possibility of insinuate that it was a quid pro quo and a
erates “some powerful people, sitting in the judges have taken up such assignments post-retirement ambitions influencing reward for the relief Justice Sathasivam Way Forward
government, (which is the largest litigant), in organizations like the National Human judicial pronouncement of judges at the gave to BJP president Amit Shah in a fake Many experts subscribe to the view
have been controlling our judges by giving Rights Commission, National Consumer cusp of retirement. Reports point out encounter case. On his part, the former that Judges accepting jobs under the
them assurances to keep them engaged Disputes Redressal Commission, Armed that the former Chief Justice of India R chief Justice denied this charge. Executive after retirement certainly
after their superannuation.” Forces Tribunal, Law Commission of India M Lodha, during his tenure, suggested Ironically, in 2012, senior BJP leaders creates situations of conflicts of interest,
Prelude to this ongoing debate was etc. Some have been appointed heads of a radical proposal to insulate soon-to- Arun Jaitley and Nitin Gadkari, had ar- especially by undermining public faith
provided by the appointment of former commissions looking into the anti-Sikh retire judges from the lure of coveted gued that the trend of recruiting retired in judicial independence. While assert-
Chief Justice of India P. Sathasivam, as riots or the Gujarat riots or as governors of post-retirement jobs byrequesting the judges was affecting the court’s judg- ing that Judiciary and Executive should
governor of Kerala in 2014 by the BJP-led states. UPA government to envisage a system ments. As per media reports, in 2012, Jait- remain mutual watchdogs than mutual
NDA government. In early April this year, Of the several reasons attributed as to under which three months before they ley had advocated for a cooling off period admirers, some critics nurse the ap-
two senior Supreme Court Justices — Justice why retired apex court judges are to be actually retired, Supreme Court and for Judges, saying that “pre-retirement prehension that post-retirement offers
J Chelameswar and Justice Kurian Joseph — appointed to these posts, generally by the high court judges would be given the judgments are influenced by a desire for can lead to erosion of judicial independ-
who were due to retire within the next few Central and state governments, one of the option to either get full salary (minus a post-retirement job”. Jaitley was backed ence. In the United States, no Supreme
months., had categorically said that they reasons is the statutory requirement of other benefits) for 10 more years after by his party president Gadkari. Court judge retires lifelong and this has
would not be accepting post-retirement these bodies. Media reports about think- been facilitated to prevent conflict of
jobs. Although they are not the first ones tank’s study make it discernible that more interest. On the other hand, in the United
to do so — former Chief Justices of India S than 30 judges were appointed within one Kingdom, Supreme Court judges retire at
H Kapadia, R M Lodha and T S Thakur have year of their retirement, while about seven the age of 70 and there is no legal bar to
More than 30 preceded them, to name a few. The refusal were appointed even before they retired. It stop judges from taking post-retirement
job, however, interestingly no judge has
can be noticed from findings of think-tank’s
by such prominent Justices was enough to
judges were ignite the debate all over again. report that since 1950, there have been 44 taken such a post.
Some experts opine that the Parlia-
Undoubtedly, the Constitution does
appointed within not specifically bar judges from tak- Chief Justices of India who have accepted ment is the appropriate place to intro-
post-retirement jobs and in certain cases,
one year of ing up any post-retirement assignment; Supreme Court judges have been appointed duce the “cooling-off period” by amend-
their retirement, nonetheless,some legal experts draw to commissions even four months ahead of ing the Constitution by incorporating a
retirement.
attention to suggestions that there should
provision similar to Articles 148 or 319
while seven be a minimum cooling-off period between Bonhomie between the Executive and or alternatively, the existing laws which
were appointed retirement and a new assignment to the Judiciary has haunted almost all dispen- permit appointment of retired Supreme
prevent conflict of interest. While agreeing
Court or High Court judges should be
sations of the past and present. Undoubt-
even before that there is no bar against a former Judge edly, Justice Sathasivam is the first Supreme amended accordingly.
taking up a job right after retirement, some
Court Chief Justice to occupy the post of
they retired legal experts point out that emerging trends governor; nevertheless, the march from LETTERS@TEHELKA.COM
TEHELKA / 31 OCTOBER 2018 26 WWW.TEHELKA.COM WWW.TEHELKA.COM
26-27 Column Anil Singh.indd 2 10/16/2018 12:31:01 PM 26-27 Column Anil Singh.indd 3 10/16/2018 12:31:08 PM