The judgment of the Supreme Court in Rojer Mathew v. South Indian Bank Ltd. and the nomination of Justice Gogoi to the Rajya Sabha again brought into sharp focus the post-retiral appointments of retired Judges. Such appointments warrant an exhaustive consideration because they impact one of the bedrocks of our democracy, the independence of judiciary, which refers to independence as a system and also independence of individual Judges. Fixed tenure and service conditions have been considered to be among the most important features to ensure a Judge’s independence.
A recent study has concluded that “pro-government” judgments being used as a means to increase the likelihood of getting prestigious government jobs is a “rational behavioural response” to alleviate career concerns. This is bound to raise questions on the independence of Judges and of the judiciary. The same risk also arises when Judges, who regularly decide cases involving companies, are subsequently appointed as office-bearers of these companies or when retired Judges resume practice and are engaged by parties who may have been involved in litigation before the said Judge while he was in office.
The Constituent Assembly Debates reveal that even though the concept of a life tenure – as in the United States of America – was mooted and rejected, there was an apprehension that retiring Judges at a fixed age may lead to twofold problems ― firstly, the judiciary may lose out on an experienced and fit adjudicator merely because he had reached the age of 65 and secondly, such Judges would then be forced to look for employment opportunities, which “may not be compatible with a judicial mentality, or which may not be in tune with their perfect independence and integrity”. Dr B.R. Ambedkar also agreed that since “65 cannot always be regarded as the zero hour in a man’s intellectual ability”, Article 128 of the Constitution of India (then Article 107) could be invoked under which retired Judges could be reappointed to hear cases.
Several Law Commission Reports have dealt with the issue of post-retirement opportunities for retired Judges. The 14th Report advocated a ban on further employment of Supreme Court and High Court Judges, as in the case of the Chairman of the Union Public Service Commission and the Comptroller and Auditor General. The Report described Article 128 as the only post-retirement avenue which could be provided to a retired Supreme Court Judge.
The interplay between retirement age and post-retirement opportunities is the focus of the present issue. It is proposed herein that the retirement ages of the Judges be increased to 70. There should be a ban on practice by the retired Judges. There should also be a ban on any executive appointment of retired Judges for a duration of five years from their date of retirement. Instead, as recommended by the 124th and 125th Law Commission Reports, Article 128 and Article 224-A should be frequently resorted to under which retired Judges should be reappointed to decide cases. Legal education is an area which could benefit immensely from the participation of retired Judges. They could greatly contribute towards designing the curriculum and in teaching the procedural subjects which could aid in a long due overhaul of the legal education system. Various jurisdictions have similarly utilised the judicial talent and it is time we did too.
II.Increasing the retirement age of Judges
Increasing the retirement age would reduce the chances of retired Judges looking for other opportunities. Presently, the Supreme Court Judges retire at the age of 65 while the High Court Judges retire at 62. This seems arbitrary and unjust in light of the fact that the retirement age of Chairpersons/Presidents in various Tribunals, which positions are statutorily occupied by retired Judges, is 70. The retirement age for the Supreme Court and High Court Judges should be at par with that of the Tribunal President/Chairperson. This would prevent the Tribunals from becoming “havens of retired persons”.
The joint memorandum submitted to the Constituent Assembly by a Conference of Judges of the Federal Court and Chief Justices of many High Courts recommended a difference in the ages of retirement of the Supreme Court and High Court Judges to ensure that the Chief Justice of a High Court or a senior puisne Judge would have “sufficient inducement to accept a puisne judgeship in the Supreme Court”. Being a Judge in the old and reputable High Courts may have been preferable to the relatively new Supreme Court at that time but the same no longer holds true as the Supreme Court has become an extremely prestigious and powerful institution. The 58th Law Commission Report also recommended that both the High Court and Supreme Court Judges retire at 65. The Constitution (114th Amendment) Bill, 2010 had been introduced with the aim of increasing the age of retirement of the High Court Judges to 65. However, it lapsed with the dissolution of the 15th Lok Sabha. As per its Statement of Objects and Reasons, the Central Pay Commission had recommended an increase in the retirement ages of government employees on the basis of “global practices, increase in life expectancy, improved health standards, need for utilisation of experience and wisdom of senior employees”, etc. The same grounds could apply to the Judges also.
Justice Bhandari, a former Judge of the Supreme Court, has been re-elected to the International Court of Justice for a second term of nine years effective from 6-2-2018. He would thus continue to be a Judge when he is 79 years old. It is therefore evident that the current retirement ages should be increased, and it is proposed that the retirement age of the Judges of the higher judiciary should be fixed at 70. Similarly, the retirement age of District Judges should be fixed at 68 (elaborated upon in Section IV, below). Such an increase in retirement ages would help reduce the vacancies in the Courts and in dealing with pendency.
III. Bar on practice
Article 124(7) of the Constitution states:
“No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.”
Thus, there is an absolute embargo on a Supreme Court Judge’s return to practice. The corresponding provision for the High Court Judges is Article 220, which provides that a person who has held office as a permanent Judge of a High Court “shall not plead or act in any court or before any authority in India except the Supreme Court and the other High Courts”. Article 220 in its present form was brought in vide 7th Amendment Act, 1956. As per the original Article 220, there was a complete embargo on the right to practice of retired High Court Judges. The article was amended because the complete bar was affecting the selection of Judges from the Bar, though the 14th Law Commission Report had criticised the said amendment. A further amendment was proposed stating that after passage of a certain period of time, retired High Court Judges could practice in their own State. This was rejected by the 72nd Law Commission Report as there was plenty of scope for abuse which would negatively impact the dignity of the office as well as the independence of judiciary.
It is proposed that retired High Court Judges should not be permitted to practice as was the case prior to the 7th Amendment. Former Judges practicing law may raise questions of “actual or perceived compromise of judicial independence, impartiality, and integrity.” There could be doubts as to whether the courtrooms would be used as business opportunities when Judges may start looking for prospective clients. Similarly, retired District Judges should also not have the right to practice.
To ensure that the loss of the option to resume practice does not act as a deterrent for prospective Judges, it is proposed that the complete bar on practice should be effective only after a period of two years from the date of the Judge’s appointment. Thus, if a Judge, who has been on the post for a maximum of two years, resigns, he will have a right to practice, albeit a limited one. In such cases, a District Judge who resigns would be able to practice in a High Court, in District Courts in other States and the Supreme Court. Similarly, a High Court Judge who resigns would be able to practice in the other High Courts where he has not held a judicial post, as well as the Supreme Court.
IV. Appointing retired Judges
In Rojer Mathew, Gogoi, J. lamented upon the fact that the Supreme Court is unable to hear important constitutional matters due to the burgeoning cases. He states that “cases heard by the Constitution Bench, which comprises five or more Judges, have fallen from over 15% in the 1950s to a mere 0.1-0.2% during the last two decades”. Articles 128 and 224-A of our Constitution provide for retired Judges of the Supreme Court and the High Courts respectively to be requested to hear and decide cases. These provisions should be frequently invoked to remedy the increasing pendency. Dr B.R. Ambedkar had stated that these provisions were the only provisions compatible with the bar on practice imposed on the Judge post-retirement. However, the said articles have been rarely resorted to. Appointment of retired Judges as “ad hoc Judges” was suggested in 2016 and Gogoi, J. had inter alia suggested resorting to Articles 128 and 224-A to tackle the increasing pendency.
- 128. Attendance of retired Judges at sittings of the Supreme Court.– Notwithstanding anything in this Chapter, the Chief Justice of India may at any time, with the previous consent of the President, request any person who has held the office of a Judge of the Supreme Court or of the Federal Court or who has held the office of a Judge of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.
224-A. Appointment of retired Judges at sittings of High Courts.– Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.
The meaning ascribed to the clause “previous consent of the President” in Article 128 is clear from the relevant Constitutional Assembly Debates. Shri T.T. Krishnamachari, who had moved the amendment, reasoned that since the executive is involved during the appointments, it should also be involved in the appointment of ad hoc Judges to prevent any bias by the Chief Justice in the selection process. Elucidating further, he had stated:
Of course, there are administrative and financial problems that might arise by the Chief Justice making a request to any of the High Court Judges of any State to cooperate with him in this manner, and even the propriety of the occasion demands that the Chief Justice should not act except in consultation with the head of the executive.
Article 124(2) and Article 217(1) specify the procedure for appointments to the higher judiciary. The provisions also use the term “consultation” which term has been the subject-matter of a number of judgments, the most recent being Supreme Court Advocates-on-Record Assn. v. Union of India. The existing system for appointing Judges by the collegium has been upheld in the said judgment and it has been conclusively held that the judiciary has primacy in matters of appointment. This principle would also apply with respect to appointments under Articles 128 and 224-A.
It is interesting to note that Article 224-A (then Article 200) had been adopted in the Assembly and was originally enacted as Article 224, but was substituted by the present Article 224 on the ground that the provision was neither adequate nor satisfactory. The provision was again brought in as Article 224-A vide 15th Amendment Act, 1963. It is not the provision which is inadequate or unsatisfactory, but its implementation.
Krishangopal v. Prakashchandra clarified that in matters related to jurisdiction, power and privilege, the position of the retired Judge appointed under Article 224-A would be akin to that of a High Court Judge. The 124th and 125th Law Commission Reports exhaustively dealt with the implementation of Article 224-A and Article 128. The Reports suggested that:
- The appointees be allotted long pending matters for final disposal.
- The regular pay and dearness allowance would be payable in such cases.
- The salary and pension both would be payable as an incentive.
- The said articles should also be utilised to deal with vacancies which arise when a Judge is retiring and no successor has been appointed. The Chief Justice could apply for the requisite consent 6 months before a Judge is due to retire and the retired Judge could continue on the post till his successor is appointed.
- Such retired Judges be reappointed within 1-3 years from their retirement date to ensure continuity.
Regarding reappointment of retired District Judges, the Supreme Court, in the following two cases, has provided certain avenues which ought to be explored:
- In All India Judges’ Assn. v. Union of India, it was opined that judicial officers who retire at the age of 60 may be reappointed till the age of 62 against vacancies in the cadre of the District Judge,
- In Sunil Samdaria v. Union of India, it has been held that retired District Judges may be appointed as additional High Court Judges under Article 224.
Thereafter, once the retirement age of District Judges is increased to 68 as proposed herein, they would have the option to be reappointed in the District Judge cadre or as an Additional Judge of the High Court till they are 70.
At one end, we have steadily increasing pendency and on the other, we have a pool of skilled and experienced adjudicators who have retired merely because they have attained a certain age. Often retired Judges may want to continue working and hence would be constrained to look for opportunities elsewhere. It is imperative that the skills of the retired Judges be utilised to resolve the pendency issues and they be provided enhanced opportunities which enable them to contribute to a betterment of the judiciary.
V. Appointments by the Executive
1. Political appointments
The Constituent Assembly Debates regarding the issue of post-retiral appointments make for an interesting read. Most of the members agreed that there was a possibility of executive interference in the judiciary if the Judges were to look for an executive appointment post-retirement. Therefore an embargo on such appointments was proposed, which was rejected by Dr Ambedkar on the ground that there would be very few disputes between the private parties and the Government and thus, the executive would rarely have any chance to influence the judiciary. However, now that the Government has emerged as the biggest litigant, such appointments need to be reconsidered.
Dr Ambedkar had further reasoned that putting such restrictions on post-retiral appointments would be a great burden on the Judges who are required to retire at sixty with a very “meagre pension”. Perusal of the salaries and pension regulations of the Supreme Court and High Court makes it evident that there has been an improvement in this regard. The retirement age too has since been increased and with a further increase as proposed in this article, the aforesaid reasons by Dr Ambedkar for not putting an embargo on post-retiral appointment would be negated.
Retired Judges have often been appointed as Governors or as members of a political party. To ensure that the possibility of such an executive appointment does not interfere with the discharge of the Judge’s duties, it is proposed that retired Judges be not permitted to take up any government or constitutional post or employment, up to at least five years from their retirement. Justice Lodha had also advocated a “cooling off” period of two years although subsequently the Supreme Court dismissed a petition which sought for directions regarding the fixing of such cooling off period for retired Judges.
2. Appointments to Tribunals
The judgments in SCAORA and Rojer Mathew have struck down attempts of executive interference in the judicial and Tribunal appointments respectively. It was conclusively held that the Judiciary would play the primary role in matters of judicial appointments to maintain its independence. In Rojer Mathew, a Constitution Bench struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 (“the 2017 Rules”) on the ground inter alia that the Rules gave the executive the upper hand in the appointments as well as in determining the service conditions. It is evident that the executive power in appointments to the various Tribunals and Commissions is sought to be weeded out with various judicial pronouncements stressing on the need to give primacy to the judiciary in such matters instead. This is to ensure that the independence of judiciary is not compromised since, as Gupta, J. observes in Rojer Mathew “one cannot expect justice from those who, on the verge of retirement, throng the corridors of power looking for post-retiral sinecures.” Since the 2017 Rules were struck down, the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2020 (“the 2020 Rules”) were brought in and their validity was adjudicated upon in Madras Bar Assn. v. Union of India. The 2020 Rules were upheld subject to certain amendments to minimise executive interference in the appointments.
In his concurring judgment in Roger Mathew, Gupta, J. has criticised the post-retiral appointments of Judges to head the Tribunals and has suggested that objective criteria, such as the method of written tests, be used instead. He has recommended the establishment of Tribunal Services for appointments to the Tribunals rather than appointing retired Judges. The Vidhi Legal Report has extensively dealt with reforms required in the Tribunal system and has suggested that the appointments be made either by an interview or an examination of the eligible candidates rather than by appointing retired Judges. It proposes that the eligibility criteria could specify that the candidate should be aged between thirty five and fifty years and have at least seven years of practice as a lawyer for judicial members and ten years of work experience for technical members. Adopting such an appointment process will ensure that there is no scope for executive interference and that the independence of judiciary is preserved.
VI. Cross jurisdictional analysis
1.United Kingdom (UK)
In UK, Judges retire at the age of 70, which is proposed to be increased to 72, although the services of certain individual Judges can be extended till they are 75 beyond which the person cannot hold any judicial office. Retired Judges can be requested to act as Judges, though not beyond the age of 75. Chapter 9 of the Guide to Judicial Conduct imposes a ban on practice. However, even though the Government’s attempt to relax the convention of not resuming practice after retirement was rejected, an increasing number of Judges are taking up the position of a legal consultant to firms and chambers post-retirement. This causes speculation as to whether the Judges had started to lobby for such positions while they were on the bench, which is similar to the problem faced in India.
2. United States of America (USA)
USA has life tenure for its Judges wherein they can voluntarily retire. In USA, judicial retirement ages have been described as an instance of “arbitrary age discrimination” since it is a debatable issue as to whether it is “morally right, socially profitable, economically wise or constitutionally sound to declare that a professional’s useful life is completed merely because they have reached an arbitrarily designated age”. However, life tenures have been seen as problematic because of the slow development of law, abuse of office by the Judges, and fear of mental “decrepitude” among the older Judges. 28 US Code § 371 and 28 US Code § 294 are the relevant provisions regarding retirement of Judges. Once the “Rule of 80” is satisfied, a US Article III Judge (which refers to the Judges of the Supreme Court, Circuit Courts and District Courts) can retire, receive an annuity equal to their last salary and resume law practice.
The other option, which is relevant for the present article, is that Judges retire as “Senior Judges” and their successor is appointed. The “Senior Judges” are then assigned work they are willing to undertake, which may comprise judicial and/or administrative work, and receive the judicial salary with regular increments. There has been an increasing tendency to retire as “Senior Judges” as the Judges are able to remain working as part of the legal system. Senior Judges are considered “critical” to the US judiciary as they mitigate the problems arising out of increasing workload and judicial vacancies. The non-Article III Judges (which refers to bankruptcy Judges, Magistrates, Judges of the US Court of Federal Claims, etc.) may also be called upon after their retirement.
Retired Judges become private Judges or join the assigned Judges program (AJP). In private judging, the retired Judges are “Judge pro tempore” i.e. temporary Judges, and are selected by counsels to hear and decide civil and family matters and are compensated by both the parties. The cases are heard in private though the courts maintain a supervisory role such as formally appointing the Judge and providing him with copies of the documents which are filed in the court. The system of private judging is considered an extremely lucrative option although it has been criticised on the ground that it gives the wealthy an easier access to justice. Furthermore, the possibility of being engaged as a private Judge by a party may also motivate the Judge’s conduct and judgment while he is on the Bench. Instances in India, where sitting Judges refer matters for arbitration/mediation to retired Judges, is definitely a step above the system of private judging.
The Assigned Judges Program (AJP) in California is akin to the “Senior Judges” in USA. The Presiding Judges can put in requests for judicial assistance and the Chief Justice can then issue judicial assignment orders to the retired or active Judges who are a part of the AJP, based on the recommendation by the AJP staff. The assigned Judges are reviewed by the Presiding Judge of their Court and in case of any complaint, the AJP staff submits the investigation report to the Chief Justice for appropriate actions which may even result in removal of the Judge from the program.
VII. Conclusion: Ensuring accountability
A former Judge is still considered as a representative of the judiciary. Thus, retired Judges should only take up roles “which do not present the same potential for actual or apparent partiality or compromise of independence or integrity as does representing parties and interests”. As Justice Posner has pertinently observed:
“Judges are less likely to decide cases with a view toward maximising their future career opportunities, and are therefore more likely to decide cases impartially, the less of a future they have. We want judging to be a terminal job rather than a springboard to another career.”
Increasing retirement ages and reappointment of retired Judges, as has been proposed in the present article, have been used in various countries to utilise the skills of experienced adjudicators in dispensing justice. However, these proposals can only be beneficial in the presence of a robust evaluation and accountability procedure. Increase in retirement age could mean long service tenures for Judges who are not up to the mark. It is thus imperative that a system of judicial performance evaluation (JPE) be introduced to maximise efficiency both pre and post-retirement.
In India, the lower judiciary has the system of annual confidential reports (ACRs), wherein the judicial officers are assessed on several wide-ranging criteria, including his conduct and the quality of judgments passed. Such assessments determine the officer’s career advancement. The Supreme Court has mandated that the performance of judicial officers be assessed before they reach 58 years of age to decide whether the judicial officer should continue to serve till the age of 60 since “the benefit of increased superannuation age shall not be available automatically to all judicial officers irrespective of their past record of service and evidence of their continued utility to the judicial system.” If the assessment is unsatisfactory, the judicial officers are compulsorily retired. Similar forms of JPE should be mandatory in the higher judiciary to ensure the suitability of Judges to continue on the bench and to be reappointed post-retirement. NITI Aayog is working on an annual performance review system for the judiciary but excluding the higher judiciary from its purview makes it a futile exercise. Highlighting the need for an accountability system, Shah, J. has pertinently observed that Judges must be constantly reminded of what is appropriate behaviour so that their role of administering impartial justice is never compromised.
† Practising Advocate in Delhi, graduate from NALSAR University of Law, Hyderabad, e-mail: email@example.com.
†† 2nd year student pursuing BCom LLB (Hons.), Gujarat National Law University, Gandhinagar, e-mail: firstname.lastname@example.org.
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