National Judicial Commission
Shyam Khosla
BJP President Nitin Gadkari’s suggestion that retiring judges should have a two-year cooling off period before they get appointed to commissions and tribunals hasn’t come a day early. It has revived decades-old debate over the undesirability of retiring judges, civil servants and military officers getting government or corporate jobs immediately after they relinquish office. The argument against such appointments is that without a cooling off period, a person on the verge of retirement may lose his/her objectivity and neutrality. Leader of the Opposition in the Rajya Sabha Arun Jaitley hit the bull’s eye with his pithy statement “Some judges know law, others know the law minister” and his blunt observation that as Law Minster in NDA Government he was apprehensive that retired judges coming to meet him might be interested in a post-retirement job. Coming as it were from president of the principal Opposition party and a former Law Minister who is a legal luminary, the issue has rightly evoked positive response from jurists and retired judges.
Veteran jurists are of the view that there is an urgent need to amend the Constitution as well as several laws to prevent retired judges from taking up post-retirement jobs. Referring to several laws that require appointment of retired Supreme Court and high court judges on commissions and tribunals, jurists propose appropriate amendments in these laws to prevent allurements of such post-retirement jobs affecting judicial independence and neutrality. Recently, former CJI J S Varma had in a lecture observed that the lure of post-retirement jobs in the government posed a serious threat to judicial independence. Underlining the need for retiring judges to eschew temptation of government jobs, Verma had said that recent recommendations for appointment to government jobs for serving judges was “disturbing”. He argued even against chamber practice and arbitration of private disputes by retired judges of the apex court. Even as the demand for a cooling off period and even a ban on post-retirement allurement to judges is gaining ground, the apex court has directed that State Information Commissions should be headed by judges. The Government must petition the court to revisit this controversial decision. Isn’t it intriguing that 18 of 23 judges who retired from the Supreme Court since January 2008 were appointed by the Government to various commissions and tribunals? Retired judges appear to be in great demand. If that is so, let the Government raise judges’ age of retirement and see that serving judges head various commissions and tribunals.
If judiciary’s professional standards are falling, one of the root causes is the arbitrary and non-transparent system of appointments and promotions of judges. Appointment and promotion of judges by Collegium is a judicial creation. It introduced the personality cult syndrome that is beyond accountability. The system is bizarre in performance; its selection process is secret and subject to no scrutiny. It excludes the executive and is unique as in no other democratic country judges appoint judges. In the late 1980s, a conscientious chief justice of a high court made an adverse comment about the conduct of a lawyer being considered for promotion to the bench. The Chief Justice resigned the day the apex court approved the appointment of the said advocate as a judge of the same high court ignoring the Chief Justice’s considered opinion. The Collegium couldn’t care less. A serving high court judge recently told me over lunch that it was hard to identify a member of Collegium not indulging in favouritism and that merit was the first casualty in appointment and promotion of judges. The legal community is almost unanimous that the Collegium system has miserably failed. There is a long standing demand for a National Judicial Commission comprising of judges, jurists and the executive for appointment, promotions and to assess judges’ performance in a transparent and equitable manner. It is high time a law to that effect is enacted to do away with the existing system. Experience has shown that Impeachment as the only punishment available in law to punish errant judges of the higher judiciary hasn’t produced the desired results. Eminent jurists argue that the law should be amended to provide for lesser punishment commensurate with the severity of the violation of the laxman rekha by judges. There is also a case for code of conduct for post retirement conduct of judges.
Not long ago, the appointment of one of the most controversial CJIs K G Balakrishnan as Chairman of Human Rights Commission on the very next day of his retirement had shocked the legal fraternity. A former Judge of the Supreme Court V R Krishna Ayyar demanded a probe into the “baffling increase” in the assets of retiring CJI”s son-in-law P V Sanjeevan, an advocate and a Kerala Youth Congress leader. Several eminent jurists urged the President of India to seek Justice Balakrishanan’s resignation from NHRC. The Congress-led Government stone-walled the demand for an independent enquiry into the assets of the former CJI and his son-in-law. Now, Congress party’s official spokesman, Manish Tiwari, is trying to trivialise the demand for cooling off period for retiring judges by making funny statements. It is sad to see the Government systematically destroying the well-earned credibility of constitutional institutions like the judiciary by alluring judges with post-retirement jobs and undermining CAG by imputing motives. While rejecting a PIL on the subject, the apex court recently expressed its anguish over attempts to undermine the authority of CAG by pointing out that CAG is not the traditional munshiji but a constitutional authority mandated to critically examine government policies involving huge expenditure.
Coming back to the cooling off period for post-retirement jobs, strict provisions need to be made to provide for a cooling off period for retiring civil and military officers for seeking jobs in public as well as private sectors, particularly in business houses and companies having business dealings with governments. There is a law to this effect but the bureaucracy has a way to circumvent such laws by arming the government with discretionary powers to make exceptions. The discretionary powers are, time and again, abused. Officers who play their cards well and are deemed to be extremely meritorious never retire. There is a long list of civil servants who continue in one government job or the other till they are 70 plus. Many among them get close to the political masters by playing to the tune of the powers that be. Worse, some of them bend rules to help corporate and big business houses which offer them lucrative jobs after their retirement. This is equally true of the some generals, admirals and air marshals who manage to get post-retirement jobs on fancy salaries with suppliers of arms and weapons in lieu of services rendered earlier. These are issues of serious concern to the society that need to be addressed sooner than later.
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