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--------------- Print Magazine --------------
  May 2016
  April 2016


Hemant Kumar, Advocate
Although cases of seasoned bureaucrats being handpicked by ruling elite after their superannuation or premature retirement so as to “accommodate” them in various statutory bodies or Constitutional Commissions have become quite common now-a-days, when it comes to pick-choosing retired Judges of Apex Court, fingers of suspicion are likely to raise especially when the appointment process is arbitrary or whimsical. Existence of discretionary power in hands of political executive apart, the exercise of the same without following a due process nevertheless casts serious aspersions over the impartiality or neutrality of those chosen for lucrative or plum assignments.

On September 30, while addressing a conclave organized by the Legal Cell of BJP, former Union Law Minister and noted Senior Advocate, Arun Jaitley lambasted the ever-growing tendency witnessed among certain members of Higher Judiciary for their "clamour" in respect of post-retirement jobs which in turn is adversely affecting the Independence of our Judiciary. He even went to the extent of pointing out that "Pre-retirement judgments are influenced by the desire of a Post-retirement job". Jaitley even quipped that "By Judicial verdicts, post-retirement jobs are being created", thus making an oblique reference to September 13 judgment of Apex Court which ruled that Central /State Information Commission(s) constituted under the Right to Information (RTI) Act, 2005 shall henceforth be headed by a person who is or has been a Judge of the Supreme Court or Chief Justice of High Court. Meanwhile, the Government has filed a review petition in respect of ibid ruling.

During the event, Nitin Gadkari, President of BJP also mulled an idea of putting in place a " cooling-off" period of two years for Judges after their superannuation before they could be considered for any further assignment, otherwise the government can directly or indirectly influence the courts.

Although the aforementioned issue has been raised by senior leaders of a national political outfit which happens to be principal opposition party, we must not ignore the same just by describing the charge as "politically-motivated". After all, a seasoned politician and renowned lawyer of the stature of Jaitley would not have lashed out at the Higher Judiciary and sounded the bugle, had everything been in proper order.

It may be recalled that on July 30 this year, a national newspaper Indian Express also carried a lead news on its front page which revealed that out of the 21 SC Judges who retired since 2008, 18 have got jobs in different government Commissions and Tribunals. The report even mentioned that there have been cases when Judges accepted post-retirement appointments much before they formally demitted office.

Without individually naming such Judges as it might tantamount to casting aspersions on their integrity and judicial statesmanship, we ought to look over the subject from a different perspective. There is no denying the fact that Judges of the country's highest court stand on a different pedestal vis-à-vis those "yes-man" bureaucrats who employ all skills and tactics preceding their superannuation so as to appease their political bosses in order to grab coveted chairs in elite statutory or constitutional bodies. The former are neither supposed nor expected to toe the line of the latter.

It is pertinent to mention that in recent years especially after the adoption of the policy of LPG (Liberalization, Privatization and Globalization ), various economic legislations have been enacted which provide for setting up of different Commissions/Regulatory Authorities coupled with Appellate Tribunals by the Central Government. Although various statutes prescribe different set of qualifications/knowledge/experience for appointment as Chairpersons/Members of such former bodies, almost all laws mandate that the latter quasi-judicial authorities be headed by only serving/retired Judges of the Supreme Court/High Courts as their Chairpersons. Hence, the pool from where suitable persons can be chosen for filling such slots is restricted to members of higher judicial fraternity.

In addition, there are certain other statutory Commissions/Tribunals like NHRC, NCDRC, CAT, AFT, NGT, Law Commission of India, etc. which can be headed only by retired Judges of SC/HCs. Further, whenever the Central or any State Government has to set up an Inquiry Commission under Commission of Inquiry Act, 1952 it always looks for retired Judges for heading the same. Not only the executive, but the Higher Courts too have been appointing retired Judges in order to ensure proper execution of its orders. Perhaps the sitting Judges prefer their retired colleagues owing to their possessing legal expertise coupled with judicial craftsmanship. Most recently in August this year a former Judge of the Supreme Court, Justice BN Agarwal, was appointed by a Bench of the Apex Court in respect of the infamous Sahara India v. SEBI case for overseeing proper compliance of the Court's directions.

Although there is no legal impediment much less any impropriety on the part of those Judges of Higher Courts who after demitting office accept offers of appointment as Chairpersons of various statutory bodies by the Government as the same has been prescribed in our Constitution, it would be much more wise as well as imperative on the part of the ruling dispensation if a due and transparent process of selection is adopted in making such appointments notwithstanding the fact whether the same is prescribed explicitly or not in the relevant statute or law governing appointments to such body or panel.

Apart from involving senior functionaries of concerned Ministries/Departments, Leader of Opposition(s) in both Houses of Parliament, distinguished experts of relevant field as well as eminent persons from Civil Society/Legal Fraternity ought to be associated in the selection process so that any appointment of such kind seems to be a "due selection" and not as a "hand-picked nomination" or "gifted rehabilitation" of a superannuated Judge by the executive Government. This practice ought to be followed as a matter of Public Policy so as to ensure that every appointment of a retired Judge withstands public scrutiny. By doing so, institutional integrity or sanctity of statutory bodies would also be preserved which in recent years has been on the decline.

Further, a demand is also being raised in certain quarters for setting up an independent body to recommend appointments of former Judges to quasi-judicial bodies. In this regard, one must keep in mind that even the proposed National Judicial Commission (NJC) which is supposed to make due selection of Judges of High Courts/Supreme Court, is yet to see light of the day courtesy lackadaisical attitude of our law-makers. Under present scheme of affairs, it seems just next to impossible that the ruling UPA dispensation would be comfortable with the idea of constituting such a National Commission.

Noteworthy to mention that it was Arun Jaitley, who while being Union Law Minister under the NDA regime in 2003 took the bold initiative in introducing the Constitution ( 98 th Amendment) Bill, 2003 in Lok Sabha which prescribed setting up of the NJC for appointment/transfer/inquiring into cases of misconduct or deviant behaviour in respect of Judges of both High Courts and Supreme Court. Sadly, the abovementioned Bill lapsed owing to dissolution of 13 th Lok Sabha in 2004 and since then no efforts were made to re-introduce the same though we have seen three successors of Jaitley in two consecutive UPA regimes.

Setting up of an autonomous national body for selecting Judges for post-retirement assignments apart, even the Central Government has not been able to bring working of all Tribunals under one nodal Ministry. Currently, there are 62 Tribunals set up by the Central Government which are being administered by 24 Ministries/Departments. Although the Supreme Court way back in 1997 called for bringing administration of all such Tribunals under a wholly Independent Agency, the same is yet to be complied with. The Central Government's efforts to even create for aforesaid purpose a "Central Tribunal Division" under Union Ministry for Law & Justice has hit roadblock as consensus has remained elusive amongst various Ministries all these years. The Supreme Court as well as an Inter-Ministerial Group (IMG) of the Government are currently seized of this vexed issue.

Although the suggestion regarding prescription of a "cooling-off" period of two years after which only a retired Judge can be considered for any further assignment by the government looks appreciable on face apparent, in reality it might prove to be rather counter-productive. As Judges of the Supreme Court superannuate after attaining the age of 65 years, with observance of such period, the desire for acquiring a lucrative post would encourage most of them to indulge in lobbying before the ruling elite or political bosses. Also, two precious years immediately following retirement of a competent Judge which would have been otherwise utilized for rendering adjudication in quasi-judicial bodies would go futile. Then most of the legislations prescribe maximum age-limit for a Chairperson as 70 years. Hence, the idea for a cooling-off period is not advisable at least for the appointment of retired Supreme Court Judges. Further, even Constitution (114 th Amendment) Bill, 2010 is pending passage in Parliament which tends to increase age of Judges of the High Courts to bring it at par with their counterparts of the Apex Court.

It must be recalled here that the elite National Human Rights Commission(NHRC) remained without a regular Chairperson for full one year till June, 2010 for the simple reason that as only a retired Chief Justice of India and that too below the age of 70 years can be appointed to such a post under the provisions of Protection of Human Rights Act, 1993(PHRA), either nobody amongst available ones was found suitable by the Government or else for reasons best known to it. Why are such rigid provisions not reviewed by the Parliament which only provide  for the appointment of former CJIs/CJs as head of national/state human rights panels ? Even Judges of SC/HCs with certain years of service should be made eligible for heading such bodies. This would indeed broaden the area of selection. The same amendments should also be emulated in other statutes where non-availability of suitable persons results in vacancies for inordinate period.

Finally, it can be concluded that an objective selection methodology in post-retirement appointment of Judges brooks no delay. Of course, my suggestion may be dismissed as "politically incorrect" by powers-that-be.

(Print Version)
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