“Judicial afternoons and evenings are sensitive phases, the incumbent being bothered about post-retiral prospects. The executive plays upon this weakness to bend the integrity or buy the partiality of the elderly brethren.” Justice Krishna Iyer’s observation demonstrates how the prospect of postretirement employment can severely damage judicial independence.
PK Sen, KT Shah, HV Kamath, K Santhanam, MA Ayyangar, Naziruddin Ahmad and Jaspat Roy Kapoor, founding fathers of the Constitution, recognised this danger in the Constituent Assembly debates; the seminal 14th Report of the Law Commission of India came down heavily on the practice, arguing that it not only affected judicial independence but also eroded the dignity and high status of the judicial office; Seervai too advocated a complete prohibition, conditional on an increase in judicial salaries and pensions, reasoning that the independence of the judiciary was more significant than the need to have judicial members presiding over tribunals and commissions.
Despite wise counsel from several constitutional stalwarts, not only has post-retirement employment continued, but it has also flourished over time. This is primarily a consequence of three intertwined factors. First, tribunals and commissions, several of which require retired judges to preside or act as members, have proliferated in the past few decades.
Second, there has been no consensus on increasing the retirement age of judges. This has resulted in judges and governments believing that retired judges, at 62 in the high court, and 65 in the Supreme Court, are still in a position to use their wide experience in public interest.
Third, pensions and post-retirement benefits of judges are widely considered to be altogether insufficient. Despite several increases over the years, retirement benefits are inadequate substitutes to the trappings of power and its concomitant perks that commission or tribunal chairpersons enjoy.
In the Constitution, Articles 124(7) and 220 deal with the regulation of post-retirement practice of Supreme Court and high court judges respectively. These were the products of a principled consensus in the Constituent Assembly that post-retirement court practice of judges ought to be curtailed. Wide differences however existed regarding the extent of such curtailment. In their comments and suggestions to the draft Constitution, Sapru and Ayyar espoused the position that all post-retirement practice of judges who had been appointed, whether permanent or additional, ought to be prohibited.
Sapru was particularly forceful in his view that the reversion of a judge to the Bar was a pernicious practice, as was demonstrated by the convention in England to prohibit it. On the contrary, sitting judges, the home ministry, Chief Justice Ram Lal of the East Punjab high court and Justice Meredith of the Patna high court specifically argued that such a prohibition should not extend to additional or temporary judges. Were such a provision introduced, the possibility of filling up vacancies from the Bar would become exceedingly difficult.
After considering these suggestions, the drafting committee placed an amended provision before the Assembly. The provision prohibited all postretirement practice of all high court and Supreme Court judges. Building on this, a proposal was made by PK Sen for a new provision, draft Article 103A (and an analogous Article 196A for the high court) additionally prohibiting sitting or retired judges of the Supreme Court or high courts from holding an office of emolument under the Government of India or that of a State.
An exception clause in relation to sitting judges when nominated by the President with the consent of the Chief Justice of India to a temporary office and in situations when an Emergency is in force was also provided for.
The primary rationale underlying such a prohibition was the need to uphold the independence of the judiciary such that “there should be no temptation before any Supreme Court judge of the possibility of his being offered any office of profit after retirement.” Such a provision was approved by the Constituent Assembly in case of the auditor-general as well as the chairman and members of the Union and State Public Service Commissions.
The rejection of the underlying principle of Sen’s amendment was based on BR Ambedkar’s view that whereas the Public Service Commissions were engaged in deciding matters in which the government is directly interested, the same would not be true for the judiciary. In his view, the judiciary will be primarily concerned in deciding “the issue between citizens and very rarely between citizens and the government.”
Ambedkar’s view is curious for the time at which it was expressed, and plainly antiquated in today’s context. In colonial times the higher judiciary may have been primarily a forum for settlement of private disputes between citizens, distinctly inferior to the legislature and executive in terms of its power. With the onset of the Constitution however, Ambedkar could hardly have claimed to believe that this position would continue unchanged.
Part III of the Constitution contained fundamental rights enforceable by citizens against the state; Part XI contained relations between the Union and the States outlining the legislative competence of each. In several instances of cases involving legislative competence as well as in alleging a fundamental rights violation, the higher judiciary would deal entirely with citizen-state disputes.
As the key drafter of the Constitution, Ambedkar’s failure to recognise this issue as significant for determining the character of the higher judiciary, is somewhat surprising. Needless to say, such a view has even lesser currency today. The very fact that the governments and their instrumentalities are the predominant litigants in India’s higher judiciary bears testimony to the fact that we live in changed times.
This is an edited excerpt from the author’s new book, ‘Independence and Accountability of the Indian Higher Judiciary’
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