Should judges accept official posts after retirement?

Recently, hours after resigning as a judge of the Calcutta High Court, Abhijit Gangopadhyay announced that he was joining the Bharatiya Janata Party (BJP). The judge’s decision to join politics and the manner in which it was taken has raised questions of judicial impropriety. Some people disapprove of the practice of judges holding official posts after retirement; they believe that this may impinge upon the independence of the judiciary. Others, including those in the government, have pointed out that such posts often require judicial personnel of the highest integrity and there is no Constitution bar to this effect. Should judges accept official posts after retirement? Justice Deepak Gupta and Sanjay Hedge discuss this question in a conversation moderated by Aaratrika Bhaumik. Edited excerpts:

Should Justice Abhijit Gangopadhyay’s decision to resign and join the BJP be considered a breach of judicial conduct by the Supreme Court? If yes, is it time for judicial reforms to expressly prohibit judges of Constitution courts from joining official posts?

Justice Deepak Gupta: Although I don’t approve of Justice Abhijit Gangopadhyay’s decision, I don’t think there is any legal bar. However, I think the time has come for the Supreme Court to restate the values expected from judges of superior courts. The Bangalore Principles of Judicial Conduct (2002) needs to be worked out again. The manner in which the judge resigned and joined a political party doesn’t speak well of judicial independence. You cannot expect any government to impose a ban or a cooling-off period because they are the gainers of the existing system. Instead, the judiciary should lay down some norms on how a judge should behave after he demits office, whether on retirement or resignation.

On judges and bureaucrats joining politics | Explained

Sanjay Hedge: Justice Gupta is right that there is no constitutional bar but expecting judges to stay away from all official posts after retirement is too much to ask for. There are certain posts for which some judges maybe uniquely qualified. The real problem as far as Justice Gangopadhyay is concerned is that he had resigned ahead of time, solely to contest the Lok Sabha elections, which is now apparent. The feeling that you get here is that can you can ask a judge to resign so that he is available for elections. That too, the ask is by a ruling party at the Centre. This does not speak highly of judicial independence. As far as political jobs are concerned, I think the time has come for the judiciary to clearly restate its values and even take an undertaking from fresh entrants that they will not join active politics before a cooling-off period of two or three years.

The Law Commission has also recommended a cooling-off period previously. If it were to be implemented, how long should it be for?

Sanjay Hedge: A cooling-off period is a healthy convention to have. It should be of at least two years. A judge retires from the High Court at 62 years, so after two or three years, they can still have an active career. Similarly, a retired Supreme Court judge will be 68 years old after the cooling-off period ends.

Comment | Pre-retirement judgments and post-retirement jobs

Justice Deepak Gupta: I am strongly of the view that there should not be any post-retirement appointments for judges as I have expressed in my minority judgment in Roger Mathews v. South Indian Bank Ltd (2019). For me, the bigger issue is the perception of the people. Sometimes judges may decide rightly, but the public may believe that since the judgment has come on the verge of retirement, it has been tainted by some expectation of a post-retiral benefit. Ordinary citizens are frequently up against the state, which is the largest litigant in India. If a judge accepts a post-retirement appointment from the government, they are bound to doubt whether their judgments were delivered for extraneous reasons. In Roger Mathews, I had written, “One cannot expect justice from those who, on the verge of retirement, throng the corridors of power looking for post retiral sinecures.”

Do you believe that judges who decide salient cases in favour of the government are more likely to secure post-retirement benefits? If so, does the remedy lie in the enactment of Central legislation since the Supreme Court has shown reluctance in the past to frame guidelines?

Justice Deepak Gupta: Unfortunately, the government is not going to bring any law. My view is that any competent lawyer can do the job reserved for a retired judge. They should just be men of integrity and calibre. When judges hanker for the trappings of power, it is a sad day for the judiciary.

Comment | Time to prohibit judges from joining politics

Sanjay Hedge: Yes, it is often a public perception that a judge looking forward to something after retirement is more likely to benefit those who might be in a position to help him. So, the power to appoint or recommend appointments should lie within the judiciary itself. If a reasonably fair and transparent method of allotment is worked out, then one could conceivably use the services of judges in judicial functions to a greater degree. The Chief Justice of the day can be apprised of the upcoming vacancies by the government and the next available judge can thereafter be allotted the concerned post.

Increasing the age of superannuation of judges is often pitched as a solution for curbing such a practice. Some experts even say that India should follow the U.S. precedent of granting Supreme Court justices lifetime tenures. Do you concur with these proposals?

Sanjay Hedge: Yes, increasing the retirement age is a possible solution. However, it might do injustice to one generation of lawyers with judicial expectations. Given the increased life expectancy and better healthcare, judges who have been performing well should possibly be allowed to continue beyond the existing retirement age.

Also read | Retired judges should not be interested in politics, says Prashant Bhushan

I think the U.S. itself is in the process of reconsidering lifetime appointments. One of the greatest jobs that any presidential administration can do is to appoint younger judges so that they are able to shape the law of the nation for the next 40 years or so. A lifetime appointment for Supreme Court judges in India would possibly leave the institution burdened and negate the entry of fresh talent.

Comment | Post-retirement appointments: a danger to judicial independence 

Justice Deepak Gupta: I agree with Sanjay. It is a dangerous trend and after some time your mental and physical faculties tend to get affected. Having said that, there should be a higher retirement age. But it should be equal for High Court and Supreme Court judges. The senior judges of the Supreme Court exercise a rather unholy hold over senior judges of the High Courts only because retirement ages are different. According to the constitutional scheme, Chief Justices of High Courts are equal to Supreme Court judges, but that is not the case in reality.

Statutes regulating tribunals and commissions often provide for the chairmanship of retired judges of the higher judiciary making them indispensable to these appointments. Is a common service or written test to secure such appointments a plausible alternative?

Sanjay Hedge: At that age, I don’t think a written test will really work. The more you get into all this service jurisprudence, the less likely you are to have independent creatures to man judicial or quasi-judicial institutions. You will only end up getting a series of judicial bureaucrats. We should ultimately learn that public belief in our profession rests largely on our ability to be of service to the nation and to harassed litigants irrespective of which side of the bench we are at.

Comment | A chilling remark and the ‘price to pay’

Justice Deepak Gupta: I am strongly of the view that there should be different types of tribunal services. For instance, a tax administrative service for tax matters and a service tribunal service for the Central Administrative Tribunal (CAT) and State Administrative Tribunals (SAT). Young people can be taken in for these services and then they can go up the ladder and head these institutions. Why should there be lateral appointments from the High Courts or the Supreme Court to head these bodies?

Justice Gupta, should post-retirement monetary perks such as pension be increased to reduce the reliance of judges on these appointments?

Justice Deepak Gupta: When you join the service as a judge, you know what you are going to get after retirement. I am not sure that people want post-retirement jobs for money. They want it for the power that comes with it. If you are competent enough, you can get sufficient work as an arbitrator or a legal advisor after retirement.

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Justice Deepak Gupta is a former judge of the Supreme Court; Sanjay Hedge is a senior advocate based in Delhi