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| Photo: Caravan Magazine |
By Nebil Nizar
The Indian Express news story dated July 30, 2012 exposed a shocking fact, out of 21 Judges retired from the Supreme Court since January 2008, 18 are granted post retirement jobs by government. In many cases, judges accepted post-retirement appointments much before they formally demitted office.
Dr. B.R Ambedkar spoke the following words in Constituent Assembly: ‘There is no difference of opinion in the House that our Judiciary must be both independent of the executive and must also be competent in itself. And the question is how these objects can be secured’. The primary talk on the independence of Judiciary is based on the doctrine of separation of powers.
Judiciary acts as a watchdog by ensuring that the other two organs of the Government function within the limits set by the Constitution of India. If the Judiciary is not independent then the other organs will pressurize the Judiciary to interpret the constitution according to them. It is also expected out of Judiciary to deliver judicial justice and not committed justice.
At present, the Constitution provides a lot of provisions for the independence of Judiciary. Art 124(2) and Art 217 (1) speaks about the retirement ages of Supreme Court and High Court Judges, respectively. They can be removed from the office only by an Impeachment in the Parliament on the grounds of proven misbehavior or incapacity. Art 121 and Art 211 speaks about the restriction to speak on the conduct of a Judge of Supreme Court or High Court on the floor of Parliament and state legislature, respectively. Art 129 and Art 215 deals with contempt power of Supreme Court and High Court, respectively.
In the recent times, reports of billion dollar worth scams are coming out. Let us take 2G Spectrum scam for example, 1.76 lakh crore is the estimated loss by Comptroller and Auditor General of India. The then Union Cabinet Minister and many senior bureaucrats are now in Jail. The media and section of society is accusing another serving Cabinet minister in the fraud. Maybe he is innocent. A basic postulate of the rule of law is that ‘justice should not only be done but it must also seen to be done’. Can Justice be ‘seen to be done’ if the same Judge who gave clean chit to this minister is tomorrow accepting a post retirement benefit from the Government?
If a tendency to appease the government arises, then the entire Justice system would collapse. It will surely undermine ‘public confidence’ in the administration of justice.
The four options in front of us to solve this issue are (
i) Appoint Judges for Life as like in the United States. (
ii) Retirement age shall be increased to 70 for both High Court and Supreme Court Judges. (
iii) Name of the Judge for post-retirement jobs should be suggested by a Panel headed by Chief Justice of Supreme Court/ High Court with Law Minister, Opposition leaders as members. (
iv)125th Report of Law Commission of India speaks about introducing shift system in Courts and re-employing retired Judges. This may also be considered.
The gravity of the situation is so heavy that the ‘academia’ must urgently moot this and find a solution for the same and forward it to all the three branches of government.
very good article .................
ReplyDeleteDear Adv. James,
DeleteThank you very much for the support.
Keep reading us.
Regards,
Nebil.
Dear Nebil Nizar, You raised a crucial problem faced by the democratic India by the past several years. The awakened Govt should not think that the silent public is incapable to realise what’s happening before them. I appreciate your courage to raise voice on this issue.
ReplyDeleteI have an opinion in addition to your proposed suggestions. On the first two suggested remedies, how is it possible to measure a Judge's capability to decide on a case? (because if he is 65 or above, there is a contingency about the status of his mental health to decide a case). So when we are accepting the first two suggestions, there should have the necessity of a test to examine a Judge's capability to decide a case.
Obviously, other suggestions are appreciable. Even 229th Law Commission report, which is submitted on 2009, is specifically mentioning the need for cassation of benches in different zones of India and also giving emphasis to shift system of Courts. It would be helpful to make a democratically selected judiciary. It can serve high values to the people more than now.
Moreover my suggestion is, in order to establish the complete objective of the constitution that is to make an independent and impartial judiciary, Judges should not hold any kind of positions other academic after their retirement age.
Dear Jino,
DeleteIn the olden days, the King used to hear all cases himself in the Royal Court. When his functions and duties got wider, he entrusted this his Judicial functions to Judiciary. The King wanted Judges to enjoy all powerd like him (Power of Contempt, Court of Record etc). People also started seeing the Judges equivalent to the King and respected alike.
As years passed, people slowly started seeing atleast a few with suspicion and the goodwill of Judiciary is jeopardised. Media acted as a catalyst and Judiciary is unable to convince the common man.
I think we as a part of the Judicial system has a duty to start a moderated debate , that does not lower the dignity of the Hon’ble Court, but that makes enough self reasonable criticism and aid the Judiciary to uphold the integrity, dignity and decorum.
Sir,I have suggested point 'one' because, I think Hon'ble Judges should be given an option to retire at an age they think fit. Former Justices Krishna Iyer, B.N Sreekrishna, J.S Verma, A.S Anand, K.T Thomas and all are active even years after their retirement. I think judicial job requires a sharp mind than a sound health and I think minds are sharpened by passing of years. Also, I think health condition of different persons differ. Let us give them a chance to retire at an age when they think they wont be able to discharge their functions.
I have suggested point 'two', because, I think the question before many retired persons is 'what next?'. If you make both Supreme Court and High Court to retire at 70, then they may not look forward for any other employment.
I have suggested point 'three', because, I think making a name panel of Judges who are willing to work after retirement should be prepared. Then whenever a vacancy comes up, a Collegium headed by Chief Justice with Law Minister and Opposition leader can recommend from this list.
Sir, I beg to disagree with your last paragraph, I do not think they must refrain from holding any post, because, Many statutes say that Judges must hold the post. Let us take National Human Rights Commission, I think they must be independent of Executive and a Judicial officer can only successfully chair that.
I expect that you are convinced.
Regards,
Nebil.
Dear Nebil Nizar, I would like to partially agree with you. I strongly support if a person suggest that judges should not hold any post after their retirement. Obviously, your statement is right, there are so many statutes describing posts for retired judges. May be, these eminent judges can only hold such prescribed posts. I respect all those eminent elder judges including Former Justices Krishna Iyer, B.N Sreekrishna, J.S Verma, A.S Anand, K.T Thomas and others who have given greater contributions for the Indian judiciary. They are having good experience and still active in legal and social fields of India. There experience is like an iron rod treated in high temperature, which couldn’t be broken even by the strongest man.
ReplyDeleteSir, on the other side, my innocent doubt is why the retired judges should only hold these statutory positions? Why not state can introduce a new system to select other able judicial officers to these posts?
I mean from the Judges of District or judicial officers from lower courts having a fixed period of experience. As law students, we know Art 129 is stating Supreme Court to be a court of record. Each and every judicial officer is referring and studying established court of records or the so called precedents for every case come to their hand. As long as a judicial officer is serving his office for a period of ten or more than ten years, he may have enough experience to handle more rigid situations.
The option is for the state to decide who should serve these posts. Judges of Supreme Court and High Court have the greater experience and knowledge of law in India. Still, experience of judicial officers of district or lower courts cannot be denied. If such a situation arises, State can make new system to select judicial officers of district courts or other lower courts to other statutory positions.(should only through an examination)
This is not to contradict the suggestions you made but only to invite more discussions on the equally important topics. Thank you.
To protect the independence of judiciary which is one of the cardinal feature of indian constitution post retirement appoints be an exception rather than a rule
ReplyDeletea few seconds ago · Like
Dear Nisa Fasil Madam, Your statement is absolutely right. At the same instance, how can we avoid exploitation of such appointments,if it is going to a larger extent, as mentioned by Mr. Nebil Nizar in his article. So, a reformation in the existing system is urged by this time and it is unavoidable for the people.
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