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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.
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