Context of the issue

• Justice A.K. Sikri, who is a well-regarded judge of the Supreme Court of India, found himself in the eye of a storm arising from accepting a post offered by the government, last year, while being a judge of the court.
• By later turning down the offer after the controversy erupted, he substantially redeemed the judiciary’s and his own honour.
• However, this is an issue that recurs frequently. Even titans in the legal field have had to face stinging rebuke from respected members of the fraternity for similar lapses.

The case of M.C. Chagla

• When we take the case of the late Justice M.C. Chagla, we realize that both he and the former Attorney General of India, M.C. Setalvad, were members of the First Law Commission.
• Speaking as members of the Law Commission they had categorically denounced the proclivity of judges accepting post-retirement jobs sponsored by governments and called for an end to it.
• Unfortunately, in his post-retirement assignments, Justice Chagla violated the very same principle he had supported.
• After retirement, he accepted a government appointment to serve as Indian Ambassador to the U.S. (1958-61) and later as Indian High Commissioner to the U.K (1962- 1963).
• Soon after this he was asked to be minister for education in Nehru’s cabinet, which he again accepted. He served as Education Minister (1963-66) and then as Minister for External Affairs (1966-67).
• All this incensed his good friend M.C. Setalvad no end. In his book, My Life: Law and Other Things, he did not mince words in commenting on this serious lapse. He observed: “The Law Commission had, after careful consideration, expressed the unanimous view that the practice of a judge looking forward to accepting employment under the government after retirement was undesirable as it could affect the independence of the judiciary… He was so keen to get into politics that soon after the report was signed by him he resigned his office to become India’s Ambassador to the United States. His action was characteristic of the self-seeking attitude of many of our leading men.”
• These harsh words are possibly unfair to a person of the calibre of Justice Chagla. As a matter of fact, in none of the posts he held could he be accused of having acted as a sidekick to the government.
• On the other hand, by declaring in 1965 that the Aligarh Muslim University could not claim minority status conferred under Article 30(1) of the Constitution, he even earned the collective ire of his cabinet members.
• Having said this, the shrill denunciations of the Law Commission on judges accepting post-retirement posts and Setalvad’s repeated calls to honour the principle merit acceptance even today.
• In a study, the Vidhi Centre for Legal Policy pointed out that as many as 70 out of 100 Supreme Court retired judges have taken up assignments in the National Human Rights Commission of India, National Consumer Disputes Redressal Commission, Armed Forces Tribunal, and the Law Commission of India, etc.
• In Rojer Mathew v. South Indian Bank Ltd. — which is currently going into the issue of tribunalisation of the judiciary and its challenges to the independence of the judiciary — senior counsel Arvind P. Datar, amicus, has observed: “The Tribunals should not be a haven for retired persons and appointment process should not result in decisions being influenced if the Government itself is a litigant and appointment authority at the same time.”

The Way Forward: Striking a balance

• At the same time, it is also true that the valuable experience and insights that competent and honest judges acquire during their period of service cannot be wasted after retirement.
• It is important to note that unlike abroad, a judge of the higher judiciary in India retires at a comparatively young age and is capable of many more years of productive work.
• Having said this, government-sponsored post-retirement appointments will continue to raise a cloud of suspicion over the judgments the best judges delivered while in service. Though cliched, it is true that in law, justice must not only be done but also be seen to be done.
• Therefore, the viable option is to expeditiously establish, through a properly enacted statute, a commission made up of a majority, if not exclusively, of retired judges to make appointments of competent retired judges to tribunals and judicial bodies.
• It is true that judges cannot legislate. However, where a void is found in the legal framework that requires immediate attention, and legislative intervention is not likely to emerge immediately, the Supreme Court is empowered to provide an interim solution till legislation is passed to address the hiatus.
• This process the top court has followed, to cite an instance (there are others), in the Vishaka case, where it laid down guidelines to deal with sexual harassment in workplaces till a law was passed by Parliament.
• It is desirable the Supreme Court invokes that methodology now and puts in place a process to regulate post-retirement appointments for judges. Such a process must sufficiently insulate the judiciary from the charge of being a recipient of government largesse.
• In these times, the attacks on the fabric of independence of the judiciary will not be through engulfing flames but through small corrosive doses. Therefore, it is in the judiciary’s own interests to resolve this issue as expeditiously as it can.