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Post-retirement Appointment of Judges

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February 12, 2019

What is the issue?

  • Controversies around appointments of judges post-retirement have been a recurring one.
  • The judiciary needs a firm mechanism to regulate the issue of post-retirement government appointments.

In law, justice must not only be done but also be seen to be done.

What are the notable instances?

  • Recently, Justice A.K. Sikri, a well-regarded judge of the Supreme Court of India, accepted a post offered by the government while being a judge of the court.
  • But controversy erupted over it and so he turned down the offer.
  • Many judges and Law Commission members have for long denounced the act of judges accepting post-retirement jobs sponsored by governments and have called for an end to it.
  • But unfortunately, Justice M.C. Chagla, who advocated this, violated the very same.
  • After retirement, he accepted a government appointment to serve as Indian Ambassador to the U.S. (1958-61) and later as Indian High Commissioner to the U.K (1962- 1963).
  • He also served as Education Minister (1963-66) and then as Minister for External Affairs (1966-67).

What are the observations in this regard?

  • Law Commission had consistently maintained that judges accepting employment under the government after retirement was undesirable.
  • It had felt that this could affect the independence of the judiciary.
  • A Vidhi Centre for Legal Policy's study pointed out that as many as 70 out of 100 Supreme Court retired judges have taken up some or the other assignments.
  • These include those in National Human Rights Commission, National Consumer Disputes Redressal Commission, Armed Forces Tribunal, and the Law Commission of India, etc.
  • It is largely observed that tribunals are getting to be havens for retired judicial persons.
  • This could result in decisions being influenced if the Government itself is a litigant and appointment authority at the same time.

What is the complexity?

  • Unlike abroad, a judge of the higher judiciary in India retires at a comparatively young age.
  • So s/he is capable of many more years of productive work.
  • The valuable experience and insights that competent and honest judges acquire during their service period cannot be wasted after retirement.
  • But government-sponsored post-retirement appointments are likely to be looked upon with suspicion.
  • As the saying goes, in law, justice must not only be done but also be seen to be done.

What should be done?

  • The viable option is to expeditiously establish a commission, through a properly enacted statute.
  • It should be made up of a majority, if not exclusively, of retired judges to make appointments of competent retired judges to tribunals and judicial bodies.
  • But for the time being, the Supreme Court can invoke its power to provide an interim solution till a legislation is passed in this regard.
  • It should put in place a process to regulate post-retirement appointments for judges, which ensures judiciary's independence.


Source: The Hindu

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