Judiciary

If Judges are precluded from taking up post-retirement jobs it may be said that considerable, expertise and ability which otherwise could have been utilised for the nation would be lost.

If the Judges are precluded from taking up post-retirement jobs or moving into active politics, it may be said that considerable experience, expertise and ability which otherwise could have been utilised for the benefit of the nation would be lost. Granting that some talent and experience may be lost, the ‘greatest good of the greatest number’ would be adequately served. It is difficult to accept the proposition that the Bar cannot spare eminent jurists and advocates to man the various Commissions and various other posts.

(1998) AIR(Kerala) 385 : (1998) 2 KLT 712 : (1999) 1 SCT 462

KERALA HIGH COURT

SINGLE BENCH

( Before : K. Narayana Kurup, J )

NIXON M. JOSEPH AND ANOTHER — Appellant

Vs.

UNION OF INDIA (UOI) AND OTHERS — Respondent

O.P. No. 3227 of 1998-H

Decided on : 08-09-1998

Commissions of Inquiry Act, 1952 – Section 3
Constitution of India, 1950 – Article 50
Cases Referred

Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, AIR 1978 SC 694 : (1978) 37 FLR 16 : (1978) 1 LLJ 492 : (1978) 2 SCC 301 : (1978) 3 SCR 12
M/s. Chetak Construction Ltd. Vs. Om Prakash and Others, (1998) 4 AD 220 : AIR 1998 SC 1855 : (1998) 3 JT 269 : (1998) 3 SCALE 153 : (1998) 4 SCC 577 : (1998) 2 SCR 1016 : (1998) AIRSCW 1653 : (1998) 4 Supreme 191

Counsel for Appearing Parties

Babu Joseph Kuruvathazha, K.P. Satheesan, for the Appellant; K. Rama Kumar, Sr. Central Govt. Standing Cousel, K. Jaya Kumar, Govt. Pleader and C.N. Radhakrishnan, for the Respondent

ORDER

K. Narayana Kurup, J.—Having regard to the manner in which I propose to dispose of this Original Petition, I am satisfied that notice to the 5th respondent is not necessary. Accordingly, notice to the 5th respondent is dispensed with. Service of notice to other respondents is complete and counsel(s) heard.

2. This writ petition filed in the nature of” Public Interest Litigation (PIL) is for the issuance of a writ of mandamus directing the 3rd respondent to declare the candidature of the 5th respondent as null and void and for a direction to the first respondent” restraining the retired Judges of High Court and Supreme Court from contesting in the election to the Union and State Legislatures within 10 years of the retirement” and for a direction commanding the 4th respondent to conduct an enquiry into the allegations raised against the 5th respondent in Exts. PI and P2 news reports and for a declaration that retired Judges are not entitled to be appointed as Commissions under the Commissions of Inquiry Act and Members of the Statutory Tribunals within 10 years, of their retirement. Since the election in which the 5th respondent contested is already over, no relief in that regard is liable to be granted in the present proceedings. The relief in the nature of a direction to the 4th respondent to conduct, an enquiry into the allegations raised against the 5th respondent in Exts. P1 and P2 news reports is misplaced and the same is also not liable to be granted in the present proceedings. Regarding the other reliefs prayed, I propose to deal with them in a wider perspective as it has a direct bearing on the independence of the judiciary and consequently on public interest.

3. A fearless and independent judiciary is the very basic foundation of our constitutional edifice. Democracy cannot exist without justice and justice cannot exist without an independent judiciary. Indeed, the judiciary should exhibit fierce independence manifested through a rare courage of conviction. Not only should it be independent but it must also appear to be so. The judiciary is identified as the last bulwark against arbitrariness and all that can be broadly labelled as not only unjust but also immoral. The nation reveres and holds in awe the uncompromising attitude of the judiciary on various vital issues affecting the country. In fact, the impression of the judiciary as final bastion against what is unjust is not of recent origin; it is discernible throughout the recorded history of mankind.

4. The Indian Judiciary occupies a unique and exalted position. It stands on a high pedestal and must remain so. Only then can it instil strength and vitality to the effective functioning of our Constitution. Any act that may adversely affect this unique and revered position of the judiciary will undoubtedly weaken it. In such an event, the judiciary will be imperilled and consequently democracy. It is against this background that one needs to deliberate upon the desirability of Judges, particularly members of the, higher judiciary, taking up post-retirement jobs, be it in the private. Government or political domain.

5. The jobs offered to Judges on retirement are highly coveted. They usually carry immense power, prestige, perquisites and monetary gain. The jobs may be offered by private enterprise (as in the case of B.P. Sinha, former Chief Justice of India who had taken up employment with M/s. Haridas Mundhra at Calcutta upon retirement which became a subject of heated debate in the Lok Sabha) or by the Government, the nature of the job varying from legal adviser to gubernatorial office. In the political arena, one could be given a ticket to contest a parliamentary seat or offered a constitutional office. But one must remember that there are any number of other candidates outside the judiciary who are equally qualified, if not more so, to take up the very job that are offered to the retired Judges. It would be too naive to assume that the retiring Judges alone can fit the slot for these jobs, it is natural, then, that the question arises in one’s mind. Is there a compelling need to offer such jobs to Judges who are leaving the judiciary ,on super annuation? Is this practice in the best interest of the judiciary and the nation? Except for jobs in the private sector, the other jobs require political blessings. Whatever the job and whoever may offer it, it will be too simplistic to presume that all the jobs. without exception, are offered purely on the basis of the qualitative requirements dictated by the job and that no extraneous considerations whatsoever come into play while selecting a retiring/retired Judge for a job. However, in the same breath one must stress that in the majority of cases, the assignments are offered solely on merit and such other aspects as dictated purely by the nature of the job and that there are no strings attached to them. But then, the possibility of a Judge securing a job or a political post or constitutional office owing to extraneous considerations cannot be altogether excluded. Even if only one such case were to take place, it would have a debilitating effect on the entire judiciary. The independence of the judiciary will be in’ question, the impartiality of the Courts will be in doubt. It will cause the erosion of the strength and vitality of the judiciary. The respect and confidence that the’ people have in the judiciary will diminish. Judiciary, as the bulwark of democracy, the last bastion, will ‘slowly, but surely, begin to crumble.

6. That being so, we may ask as to why we need to inflict upon ourselves such a course of action that is fraught with such negative and debilitating ramifications. Apparently, it is neither prudent nor in our interest to do so. However, before making any final conclusion on the question of the desirability of Judges taking up post-retirement jobs or plunging into active politics, one needs to ponder over the role of the judiciary, the place it has come to occupy in our constitutional set up, the public perception of the judiciary and judicial ethics and propriety.

7. Over the decades the general public have come to repose absolute faith in the judiciary. They see in it an institution that can effectively combat corruption and nepotism at high places which have come to be associated with governance. In fact it occupies an exalted position in the minds of the people as the saviour of democracy. In this context Justice Fazal Ali’s Postulation of the Propositions on Proper Judicial Conduct is very much relevant:

“The High Court Judges are the repository of the confidence of the people and the protectors of their rights and liberties. Therefore, having regard to the onerous duties and sacrosanct functions which a Judge has to discharge, he has to act and conduct himself in a manner which enhances the confidence of the people in the judiciary. ……

Having regard to these circumstances, therefore, once a Judge decides to accept the high post of a High Court Judge he has to abide by certain fixed principles and norms, and also some certain self-imposed restrictions in order to maintain the dignity of the high office he holds so as to enhance the image of the Court of which he is a member and to see that the great confidence which the people have in the Court is not lost.”

(See Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, . Fazal AH dissenting: The majority judgment was delivered by Sarkaria, J. for himself and Gupta, Untwalia and Jaswant Singh, JJ. There is, however, nothing in the majority judgment to derogate from the soundness of the principle enunciated by Fazal AH, J. in his dissenting judgment).

8. The depth of respect for Judges in Indian Society is second only to the respect of saints and sages. One of the factors which highlight this reverence for Judges is that whenever it is fell necessary to order a probe into a matter of public and national importance, there is a clam our for judicial ‘investigation as distinguished from an administrative investigation. This means that the people have a deep-rooted faith in the impartiality of Judges and in their sterling character. Therefore, a great responsibility rests on the members of the higher judiciary to sustain this respect which has been gained by precedents set by a long line of distinguished Judges.

9. Therefore, a Judge shall not allow his judicial position to be compromised at any cost. This is essential for maintaining the integrity of the judiciary and public confidence in it. A Judge is expected to act as an impartial referee and decide cases objectively, uninfluenced by any personal bias or prejudice. The credibility of the judiciary as an institution rests on the fairness and impartiality of Judges. Public confidence in the judiciary rests on the legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. Judges must always ensure that they do not allow the credibility of the institution to be eroded. Justice mustliot only be done but it must also be seen to be done. (Vide Dr. Anand and Venkataswamy. JJ. in M/s. Chetak Construction Ltd. Vs. Om Prakash and Others,

10. In this context, the principles of judicial propriety assume vital importance. On this point the observation made by Justice Nasir-Ullah Beg while addressing the conference of U.p; Judicial Officers, held at Lucknow in April 1967 speak for themselves:–

“No doubt, it (the brotherhood of Judges) carries great honour and glory with it, but the very nobility and greatness of this honour and glory cast a heavy and onerous responsibility on the shoulders of every one who has the privilege of belonging to it. Be it however, remembered that if honour in brotherhood is indivisible, so is dishonour. Any deflection from the path of rectitude by a single member casts a serious slur on the honour of the entire brotherhood: Any culpable conduct on the part of a single member constitutes betrayal of the brotherhood as a whole”.

11. While there are no formal rules to regulate the conduct of Judges of the Supreme Court and the High Courts, there exists an unwritten code on the subject. This Code is based on a long line of traditions bearing on the upright, righteous and uncontroversial behaviour of the members of the Judiciary. It is expected of Judges to scrupulously conform to the time-honoured conventions on the subject. Their behaviour has to be informed by a sense of dignity of the Judiciary as a whole so as to sustain the deep respect of the general public. They are expected generally to conduct themselves in such a way as not to give rise to any legitimate doubt about their judicial detachment. It may also be noted that judicial propriety does not end in the Court room. In private as also in post-retirement life, the Judges have to conduct themselves in conformity with certain time-honoured standards of a restraining nature. It is not as if the umbilical cord of propriety, decorum and restraint are completely severed the moment one bids farewell to the Bench giving unbridled liberty to act in whatever manner one fancies. Therefore, the importance to continue to maintain moderation, reserve and sobriety even after one has retired from the Bench.

12. The above-mentioned are some of the important aspects that come into play while a Judge is on the Bench or demits office. We may now consider the post-retirement scenario closely. While some Judges take the long awaited and well earned rest from a hectic judicial life and perhaps to follow some innocuous past-time and then fade away, others like Justice V. R. Krishna lyer remain in the lime-light championing laudable causes or otherwise making worthy contributions to the society at large. Superannuation is aptly summed up thus :

O blest retirement, friend to life’s decline, Retreats from care, that never must be mine, How blest is he who crowns in shades like these, A youth of labour with an age of ease.

The Deserted Village, 97.

. 13. Here, it is worth recalling the words of the former Chief Justice off India Mr. M. Hidayatullah on ‘After Retirement’. In his book ‘My Own Boswell’ he says at page 268 ;

“I was never in the mood of Lord Macaulay who said “I shall retire early; I am very tired”. 1 knew that life meant that one must continue to occupy his time with work. The suggestion, that I should open an office in Bombay for legal work, did not appeal to me. It looked somewhat odd for a Chief Justice of India to do that. In our apartment we furnished one room as a study because I was going to embark on literary pursuits. …. I had already written two slim books …. and edited Mulla’sMohamcdan Law….I delivered lectures… During my spare time I advised such parties as consulted me and heard a number of important arbitrations………”

Therefore, the message is that one can continue to make worthwhile and positive contributions to the society even after retirement without getting involved in active politics or adorning any office, constitutional or otherwise.

14. However, there are some Judges who evince keen interest in taking up another career on retirement from the Bench. The argument in their case is that a Judge, after retirement, is like any other citizen and is entitled to exercise his civil rights as a citizen and hence free to take up a job or even plunge into politics after retirement. However, the question of Judges taking up post-retirement jobs or political office is not as simple as it appears. There are certain aspects of the issue which may not be in the best interest of an independent and fearless judiciary. Consider, for instance, the inter-face between Judges and politicians in the context of personal career versus the Judicial institution. The post-retirement aspirations of the Judge for personal career advancement may not be in consonance with or in the best interests of an independent judiciary.

Recently a former Chief Justice of India entered the Rajya Sabha on a party ticket. And a former Chief Justice of this Court (fifth respondent herein) contested a Lok Sabha seat, the moment he demitted office, again on a party ticket. In doing so, one would say they were only exercising their civil rights as a citizen(s). But then, certain questions arise. Would a political party have given a ticket to an ordinary citizen without he being the former Chief Justice of India or of this Court. Will a political party give a ticket even to a former Chief Justice of India or of this Court without having known him earlier? Should not there be a public declaration on the party’s acquaintance with the former Judge? Has the Judge been harbouring a strong political leaning while on the Bench? One may not labour at finding answers to these questions. The very fact that these questions have arisen is in itself disquieting. Even if Judges are guided by lofty ideals and not influenced by impure motives in joining politics, their action can cause incalculable damage to the faith of the people in the judicial system. The public cannot be faulted if they consider a person coloured and presumptuous if he joins the political band-wagon soon after he demits the judicial office. The element of accountability arises from the very nature of the judicial functions of a Judge. As Justice Jackson said; “We are not final because we are infallible, but we arc infallible because we are final”. Mr. Ray mark, in his book, “The lawyer–the public and professional responsibilities”, observes that the Bar is not a private guild, like that of the barbers, butchers and candle-stick makers, but by bold contrast a public institution committed to public justicc. This observation applies with equal force to the members of the judiciary too. It may at once be stated that the question of impropriety in these cases arise from the fact that such conduct tends to compromise the institutional dignity of the higher judiciary of the country. Of the several provisions in the Constitution to safeguard the prestige of the Judges one is contained in Article 124(7) which provides that 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. A comparable restriction is enacted for High Court Judges in Article 220, namely that no retired permanent Judge shall plead or act in any Court or before any authority in India except the Supreme Court or other High Court. This is a wholesome restriction although it runs counter to the fundamental rights of citizens (and retired Judges are also citizens–Article 5) to practise any profession, etc. as guaranteed under Article 19( I )(g). It is from this angle that taking up of service under a private employer or accepting any plum assignment from the Government or joining politics after holding the exalted office of the Judge of the High Court or of the Supreme Court may be considered as derogatory to the; prestige of Judges of Superior Courts. And to that extent it may involve an element of quasi-judicial impropriety.

15. Now let us consider the appointment of sitting Judges on the verge of retirement and retired Judges as Inquiry Commissions by the Executive. Though such appointments may be justified, will it not strike at the root of an independent judiciary in the absence of effective and meaningful consultative process for selecting the right incumbent(s). Though this practice has an advantage of utilising the talents of experienced hands, it has one disadvantage as it is capable of being misused by making the appointment(s) based on political patronage as has been cautioned by Shri Venkatachaliah, Chairman, National Human Rights Commission during his recem visit to Trivandrum. A Judge on the verge of retirement may at least contemplate the chances of being appointed a Commission after retirement. It is not to stress that these appointments do have any impact on all Judges. But at least some of them might be interested. To say that some may be interested and their independence might be affected is not intended to cast aspersion on the judiciary as a whole. It is a possibility with potential for the destruction of the independence of judiciary. There may be temptations lurking in these appointments with possibilities of adversely affecting the independence of judiciary.

16. A similar jeopardy may arise when a Judge takes up private employment on retire ment. To cite an example the propriety of the former Chief Justice of India, Mr. B.P. Sinha (notetl supra) taking up service with a private firm (one of the concerns of Haridas Mundhra at Calcutta) after retirement was questioned in the Lok Sabha on April 18, 1969. The then Minister of State for Home Affairs who answered the question shared the misgivings of some of the members of the House or Judges taking up private service after retirement. He said that the Government expected that the Judge of the Supreme Court and High Court would maintain the highest level of conduct. He also expressed the hope that those who occupied the highest positions in the judiciary should think before they decide to enter private employment after retirement. Justice V.R. Krishna lyer in his book ‘Law and the People’ had rightly observed as follows :–

“It must be said that the independence of judiciary which plays the useful role in democratic societies in checking a class biased Government is being undermined in our country, by such devices as making Judges, after retirement or on the eve of retirement, governors, ambassadors, Vice-Chancellors etc. These plums have a seductive influence on the superannuating gentlemen and should be avoided, if we are purists regarding the independence of the judiciary.”

17. To this list, we may add the tendency to appoint retired Judges on Commissions, position on world bodies, such ‘plums’ as are offered by political parties.

18. If the Judges are precluded from taking up post-retirement jobs or moving into active politics, it may be said that considerable experience, expertise and ability which otherwise could have been utilised for the benefit of the nation would be lost. Granting that some talent and experience may be lost, the ‘greatest good of the greatest number’ would be adequately served. It is difficult to accept the proposition that the Bar cannot spare eminent jurists and advocates to man the various Commissions and various other posts. After all, the judiciary is by and large made up of former members of the Bar. It is hard to believe that a few years on the Bench will invest the incumbent with such abilities as were found absent in him earlier. Of course, the argument against this will be that the members of the Bar are so attached to their luctrative practice that they are unwilling to make this sacrifice, an accusation yet to be proved in a majority of cases. Whatever changes are effected, one must accept the fact that a system, a rule, a law and a convention will always have some drawback or unintended consequences. This is true of life itself. There is nothing known as absolute good. What one has to consider is whether the salutary effect outweigh the deleterious consequences or vice-versa. A lot is to be said in support of the plea that barring the Judges from post-retirement appointments as also active politics would do more good than harm. Another remedy could be to increase the age of retirement of Judges so that they could continue on the Bench for a longer time so that they need not be appointed in new capacities after retirement. In any case the solution does not lie in the direction of post-retirement appointments. It is possible that by increasing the age of retirement to say 70 years and the strength of the judiciary in various Courts, these jobs can be manned by Judges up to their dates of retirement and not thereafter.

19. The general public reposing absolute faith in the judiciary, see in it, justifiably an institution, that can rein in, if not eliminate, the rapacity, nepotism and corruption, especially at high places which have come to be associated with governance. The judiciary should continue to merit the exalted position it occupies in the minds and hearts of the people as the “saviour of democracy”. It cannot be gainsaid that the one necessary condition for this is its independence. Independence in the sense free from the executive, meaning the bureaucracy and politicians, interference and influence of every type. And fundamental to freedom from such influence and pressures on the judiciary is to eschew active politics and acceptance of positions by Judges after retirement.

20. However, considering its importance and ramifications, the issue is a matter of national concern which needs to be addressed by the first respondent. While it is argued that it is the fundamental right of acitizen to nurture a political belief or to take up an employment the person who had sat in judgment over others ought not only be just and balanced but should be seen to be so. One cannot rule out persons nurturing political ambitions unwillingly taking command from political masters. Nothing can be more catastrophic than that. It is well nigh impossible for a person who has been dreaming of making a mark in the political arena the moment he quits office, be presumed to be unbiased in the discharge of his judicial function. Judges making a bee-line for plum assignments, running after office of profit after retirement, or joining the political band wagon will certainly erode the confidence of the people in the judiciary. The issue needs urgent and careful deliberation by a competent body in the interest of the judiciary and the nation.

Accordingly, while dismissing this Original Petition in limine, I direct a copy of this judgment be forwarded forthwith to the Secretary, Ministry of Law and Justice, New Delhi and to the Cabinet Secretary, Central Secretariat, New Delhi for taking such action as they deem fit to take.

The Original Petition is dismissed.

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