A Judge of The Supreme Court Shall Not Act As A Judge After Retirement

Justice K. Venkataswami, it appears unable to accept the imputation that his conduct of the Tehelka Inquiry might be coloured by his appointment to a high official position, has resigned. “Hindustan Times’ is absolutely right in stating that he has been a victim of “shoddy politics”. He did not seek the assignment. He was chosen by the Supreme Court of India. Whatever may be the reason, the Thehelka investigation is scuttled. Now the Central Government will ask the name of another retired Supreme Court Judge to continue the inquiry, and God may forbid he may also become victim of “Shoddy politics”. Sadly, this is how the politics is being conducted in our country.  The question which it raises is : should Judges be given political assignment and non-political assignment.  The reasonable answer may be that the appointment in the Tehelka Inquiry or other assignment is justified on merit and that the choice made by the Chief Justice of India, is a wise one. However, the question remains and it is : Is the appointment a proper one to make? Should a retired Judge of the Supreme Court accept the appointment?  The question arises as to why for all such inquiries a retired Judge of the Supreme Court or High Court is appointed. The reason may be that no one drawn from the public life of the country can do this job, or it may be inferred that the appointment has been made to justify the secular character of the State. Both the reasons do not appear to be correct. India being a vast country it would not be difficult to find a suitable person.  Under the constitution of India, the judiciary is one of the three important limbs of the State. The Supreme Court and the High Courts in the States have to play an important role under the Constitution. Under the Constitution, the Supreme Court and the High Courts act as guardians of the rights of an individual citizen and independence of judiciary is of paramount importance. A Judge has to do his duty with impartiality and it is no concern of his whether his decisions are liked or are not liked by the executives.  Article 124 of the Constitution of India lays down the procedure for establishment of constitution of Supreme Court. Sub-clause (7) of Article 124 reads as under :  “No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any Authority within the territory of India”  The word act in Article 124 (7) means only acting as a Judge as it is preceded by the word plead. It is thus clear that the intention behind Article 124 was that ‘no person who has held office as a Judge of the Supreme Court shall act as a Judge’. However, it is surprising that some statutes explicitly provide only a retired Supreme Court Judge to be appointed to the judicial position under them. Reference may be made to the Consumer Protection Act, 1988, and the Protection of Human-Rights Act, 1998. In both the enactments a Judge of the Supreme Court is required to be appointed as its President/Chair-person. In a case decided by the National Commission, an appeal lies to the Supreme Court it means that the decision of the retired Judge shall be scrutinized and corrected by sitting Judge of the Supreme Court, may be he had remained junior to him. In the matter arising under the provisions of the Protection of Human Rights Act after an inquiry the Chair-person is required to approach the Supreme Court or the High Court concerned for seeking such directions or orders as may be deemed necessary. This position does not appear to be very happy.  The first Law Commission in its report considered the question of the Supreme Court Judges taking employment under the State or the Union after retirement. The Commission was of the considered opinion that it was necessary to safeguard the independence of the Supreme Court that their reappointment should be barred by enacting a law except appointment as ad hoc Judges. It may be noted that justice Chagla who was a member of the Commission after submission of the report of the Commission was appointed as Ambassador to the United States of America. And this appointment was severely criticised by Mr. M. C. Setalvad who was the Chairman of the Commission, and the criticism appeared in the Press also. But could not bring any impact.  The age of retirement in the National Commission is 70 years. Similarly, the retirement age in the Human Rights Commission is 70 years. A Judge gets a lease of five years; certainly it affects the independence of judiciary, which is the basic feature of the Constitution of India. It may be noted that a Judge of the Supreme Court takes an oath to protect the Constitution. It is expected that the Judges of the Supreme Court owe a duty to respect their oath, which means they would not violate the provisions of the Constitution. They have so far set high standard.  The impartiality of the Judicial Office depends upon a Judge being completely indifferent as to whether he decides in favour of the Government or against it. This is particularly important in a Parliamentary democracy such as ours. It is still in a state of infancy. The Rule of Law is the basis of any democratic form of Government and if Judges have to play their part well and truly and with fearlessness and impartiality, no kind of inducement should be allowed to interfere with their judicial integrity. A Judge is a human being. this instinct of ambition in a Judge may conceivably be too difficult for him to resist and he may so conduct himself as to provide consciously or unconsciously his own ambitions in life. The standard of judicial behaviour should never be allowed to fall. One hears at preset a great deal about the fall in the standard of public behaviour. If the independence of the judiciary is to be preserved as a national asset, Judges should, under no circumstances, be given a political assignment.  In Ranjit Thakur v. Union of India, AIR 1987 SC 2386 the Supreme Court while considering the procedural safeguard against bias contained in Section 130 of the Army Act, 1956 observed that a judgment which is the result of bias or want of impartiality and trial is “coram-non-judice”. As to tests of the likelihood of bias, the Supreme Court observed that what is relevant as to the reasonableness of the apprehension is that regard in the mind of the party. The proper approach of the Judge is not to look at his own mind and ask himself, however, honestly, “Am I biased? But to look at the mind of the party before him.” The law will never be strong or respected unless it has sentiments of the people behind it.  It is settled law that justice must be rooted in confidence and confidence is destroyed when right minded persons go away thinking, “Judge was biased”. Judge like Caesar’s wife should be above suspicion.  One hears at present a great deal about fall in standard of public behaviour. Though the judiciary has, on the whole, so far stood the test and has earned public gratitude. We are proud of our Judiciary. But we must admit it frankly that today we are hearing of corruption, which is raising its hold with manifold heads. Its fangs are attempting to bite every one. The conduct of Judges is under criticism. Justice V. R. Krishna Iyer in his article “Indian Proletariat and Judicial Salariat” has made the following remarks, when salary of the Judges in “Daridra Bharat” was raised from Rs. 9000 to Rs. 26,000 :—  “Realising that dynamic Courts may not retreat from issuing writs and directions when injustice is brought to their notice, the Elite Establishment is experimenting with a surer method of “class” proselytisation by a salary surge (from Rs. 9,000 to Rs. 26,000). Afterall, Jefferson long ago wrote : “Our Judges are as honest as other men, and not moreso. They have with others, the same passions or party, for power, and the privilege of their corps”. In his book, “Access To Justice” the great jurist, philosopher and Saint Justice Krishna Iyer, while considering the escalating pathology of the Indian judiciary made the following remarks.  “As mentioned earlier Chief Justices of the Supreme Court and High Courts have been kept in good humour by offer of unjust extra facilities................ and offer of Commission and other appointment which may bring in more prominence or perquisites”.  The current situation is grim. Many Chief Justices lamented about the fall in the quality of justice administered by the Courts. Therefore, it is high time when the Judges should conduct themselves in a way whereby people may repose faith and confidence in them as before.  In case the interpretation of Article 124 (7) of the Constitution as given above is not accepted, the Constitution be amended to enable the Judges to act and plead or they should be barred from seeking re-employment. In this manner the independence of the judiciary, which is the basic feature of the Constitution, shall be maintained.  The need for interpretation of Article 124 (7) as made above is greater today for a strong and independent judiciary. The appointment of a Judge to a non-judicial post, cuts at the root of the indepenence of the judiciary. A Judge’s ambition should be within the sphere of the judiciary and he should never look for prizes in the political field. Social justice is the first charge on our Constitutional Order.  We have to maintain the independence of the Judiciary at all costs. No Judge whether sitting or retired should accept or be appointed to a non-judicial post.

Author Name: Hon’ble Justice Panachand Jain