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Indian Judges Accepting Post-Retirement Assignments: The Way Forward

The Way Forward Introduction:
Indian Judges, especially those in the higher judiciary, often accept different governmental assignments, after they retire from judgeship. This is not something new in India. If we delve into the history, we realize that, India had seen various instances, wherein Judges are appointed to different positions after retirement. However, if we see the Constitution of India, there is no constitutional bar, nor is there any specific law, which prohibits judges from accepting post-retirement positions.

But how correct is this and should restrictions be imposed on it? In some way or other, these events undermine the independence of the Indian judiciary and, can create situations, where the judges may be influenced in their decision-making, looking for post- retirement benefits.

Tracing the History:
If we see some of the historical instances, like in the year 1952, shortly after retiring from the Supreme Court, Justice Fazl Ali was appointed to the post of Governor in the state of Orissa and Assam.

In the year 1958, M.C. Chagla resigned as the Chief Justice of Bombay HC, because PM Nehru invited him to serve as India's ambassador to the USA.

Justice Markandey Katju, was made the Chairman of the Press Council of India, after retiring from the judgeship of Supreme Court.

In the year 2014, P. Sathasivam (40th CJI) was nominated as the Governor of Kerala.

In the year 2020 also, the public saw the appointment of Justice Ranjan Gogoi, former CJI, as a member of the Rajya Sabha (Upper House of the Parliament) by the President of India. This event remained in headlines and discussions for many days, some people argued against this and some favored this appointment.

Opposition parties and their leaders argued that as Gogoi, had given various decisions, considered to be pro-government, such as giving a clean chit to PM Modi's government in the Rafale case, solving a long pending issue with regards to Ram Janmabhoomi, he was offered the Rajya Sabha post.

In the latest move, this year (2023) S. Abdul Nazeer J. was appointed as the Governor of Andhra Pradesh. This event also remained in discussion and various opinions were flooded, some favoring the decision and some against it.

The appointments are not restricted to the above-mentioned examples, there had been various other moments, where the judges, either resigned to accept some other post-retirement jobs or joined other institutions after retirement.

If we have a look at some statistics: "Since the year 1950, there have been 44 CJIs who have accepted post-retirement jobs",

According to another study, "as many as 70 out of 100 formerSupreme Court judges have taken various assignments in organizations like NHRC, Law Commission of India Armed Forces Tribunal, National Consumer Disputes Redressal Commission, etc."

The Way Forward:
To the best of understanding, judges should restrain or prohibit themselves from acquiring other governmental positions, after retirement, as followed in the United Kingdom. Despite there being no law prohibiting the further appointment of judges - no judge has taken another governmental position after retirement from judgeship.

If Indian judges follow the same, it would also set an example to other judges and would create an impression of a strong and independent judiciary in the mind of the public and world. If this prohibitory measure doesn't work over a period of time, then the Indian Legislature should try to make the required efforts, either by bringing a law, or via the mechanism of Constitutional Amendment which can bar further appointment of judges.

Some of the arguments that supported having a bar on the further appointment:
First Law Commission, presided by M C Setalvad, has also recommended that the judges of the higher judiciary should restrain themselves from accepting any government assignments after retirement. He has said, "Such judges must not forget that their conduct even post-retirement was crucial to preserve people's faith in the judiciary".

Other than this, the former Chief Justice of Delhi HC, A P Shah, had also suggested a complete ban on post-retirement jobs, for maintaining integrity.

Additionally, there is no provision for further appointment of judges in the USA, to prevent conflict of interest.

The Supreme Court of India, also in the famous 'master of roster case,' held that "public confidence was the greatest asset of the judiciary."

In a nutshell, for maintaining the esteem of the Indian judiciary, the government needs to take some steps, which bar the further appointment of the judges. These prohibitory steps would ensure maintaining the trust of the Indian society which has been placed in the judiciary. Furthermore, criticisms against the judiciary and former judges would reduce, which would also ensure that judges carry out decision-making independently, without any bias present in their minds. The autonomy of the office of the judge would also continue.

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