Ajay Vaishnav and Pankaj Sharma / Zee Research Group
The latest round of public spat between the Opposition and the ruling establishment has as usual diluted the core issue of imparting transparency and accountability in appointments of judges in constitutional and public bodies.
Arun Jaitley, Leader of the Opposition in the Rajya Sabha had said that, “pre-retirement judgements are influenced by a desire for a post-retirement job.” Instead of igniting a public debate on the issue, Law Minister Salman Khurshid retorted that the position of the judiciary shouldn’t be undermined. This is when the UPA government is for initialling key reforms in the judiciary especially vis-a-vis the appointment of judges in the Supreme Court.
The prevailing acrimony in the polity has prevented what could have been a healthy and imperative debate on – should judges be permanently barred from taking assignments after demitting office or the more practical two-year “cooling-off” period approach be adopted.
A closer scrutiny of recent appointments in quasi-judicial and other bodies lends credence to Jaitley’s charge. In the last four years, 18 out of 21 retired Supreme Court judges have been appointed to various commissions or tribunals or lokayuktas after retirement. The list includes some of the best legal luminaries of India such as Justice Markandey Katju, Justice AK Ganguly, and Justice SB Sinha.
It isn’t that the Constitution is completely silent on the issue. Article 124 of the Constitution bars Supreme Court judges from practising in any court or before any authority within the territory of India. In case of high court judges, under Article 220, they can plead only in the Supreme Court and the other high courts.
Moreover, the Constitution aims for a strict separation of judiciary from executive to prevent latter influencing judicial impartiality. Our founding fathers have made elaborate provisions to negate or at least minimises that possibility by making impeachment process tough for removal of judges.
Yet the Constitution does not specifically bar any postretirement assignment for judges. There are several statutory posts such as the chairman of the National Human Rights Commission and others which are mandated to be filled by sitting or retired Supreme Court judges or the Chief Justice of India. The same applies for states.
Aruneshwar Gupta, a former advocate general from Rajasthan outrightly dismisses Jaitley’s suggestion. He is of the view that “cooling-off” period is not practical. Instead the focus should be on imparting greater transparency in such appointments.
“BJP’s proposal of giving two years gap to a judge for next assignment after retirement is a political gimmick. This is not a workable idea. Rather we should maintain a data base of every judge to assess his performance. Government should check the background of any judge before assigning any new job,” Gupta says.
Subhash C Kashyap, Constitutional expert, shares the view that judges should be barred from taking up any paid job after the retirement. He, however, suggests reviewing the retirement age of judges.
“I reiterated the findings of the National Commission to Review the Working of the Constitution 2002 which pitched for increasing the retirement age of judges. The retirement age should increase from 65 to 70 as life expectancy has also gone up in our country. No judges should be allowed to take up any paid job after the retirement,” Kashyap stresses.
Kashyap’s view has found resonance with others as well. Dr Adish Aggarwala, senior additional advocate general, Haryana and & Punjab and President, International Jurists Council supports increasing the retirement age and complete ban on arbitration.
“I don’t buy BJP’s formula but I would say that the retirement age of Supreme Court judges should increase to 68 from 65 and of high court judges from 62 to 65. And after the retirement no judge should be allowed to do any arbitration work barring being elected in a commission of inquiry,” Aggrawala says.