Post Retirement Ethics for Judges: A Critique

The Author, Yash Chhikara is a 2nd Year, BA.LLB student at National Law University, Odisha. He is currently interning with LatestLaws.com.

The Constitution, the supreme law of the land has been conceived to provide pride of place to the Judiciary. The Constitution has bestowed several rights to the Judges in order to secure the independence of the Judiciary. Chapter 4 of part V of the Constitution and Chapter 5 of Part VI talks about the establishment and constitution of the Supreme Court and High Court respectively.[1]Fixing the salaries of the judges, their retirement age, their appointment, their security of service, prohibition to practice after retirement are some of the steps to promote the independence of the judiciary.[2] These provisions in the constitution canvass an image that the framers of the constitution had envisaged. The framers of the constitution wanted to have an independent and unambitious judiciary for whom the only steering values are the articles of the Constitution.

The independence of the judiciary is of paramount importance in a democracy. The faith of people in the Justice delivery system of the country is dependent on the independence and non-biases of the judges. The profession of a judge requires sacrifices which in the end provides him/her with rights and power to steer towards social justice. The paradigm shift in the professional and societal roles has pressured the judges to re-evaluate upon the amount of sacrifices the society demands in order to serve on a bench. The changes in the societal roles have posed different ethical difficulties, with each additional layer of complexities, judges tend to become more frustrated with the restrictions placed on them.

Judicial integrity as a part of the independence of the judiciary is of prime importance both inside and outside the courtroom. The enigma arises when one started to ask about the relevance of the same post-retirement. The Constitution assembly debate's answered it in the affirmative. The Constitutional assembly debates witness serious objections for post-retirement appointments. The constitutional makers who objected to such appointments mentioned that if this temptation of being appointed to other high positions after retirement is not resolved it will result in abuse by the executive.

The Law Commission in its 14^th report also highlighted the issue and asked for a restriction on acceptance of posts by the judges under the government. The report mentioned that such appointments could hamper the independence and integrity of the judiciary.[3]

Judicial Ethics and conduct of Judicial Officers

Justice Kurian Joseph in K.P. Singh vs. High Court of H.P. & Ors. talks about judicial ethics and conduct of judicial officers at length.[4] The Court in its judgement has defined the term Integrity. The court mentioned that “integrity depicts a sterling character with firm adherence to a code of moral values. Therefore, Judicial Officers should possess a sterling quality of integrity.”

The Apex Court judgement in the case of Tarak Singh vs. Jyoti Basu opined that integrity is the hallmark of judicial discipline. The court mentioned

“Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary took the utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the judicial-delivery system resulting in the failure of public confidence in the system. It must be remembered that woodpeckers inside pose a larger threat than the storm outside.”[5]

The court again in the case of High Court of judicature for Rajasthan v Ramesh Chand Paliwan recognized Judges as “hermits”. The court further opined that “Judges have to live and behave like hermits, who have no desire or aspiration, having shed it through penance. Their mission is to supply light and not heat”.[6]

The court in the case of Tarak Singh (supra) had further commented on judges being ambitious to achieve something. The court mentioned that it is not wrong for judges to be ambitious to achieve something, but if that ambition is expected to cause a bargain with “divine judicial duty” it is better he/she do not pursue it. To quote, the court noticed,

“There is nothing wrong in a Judge having an ambition to achieve something, but if the ambition to achieve is likely to cause a compromise with his divine judicial duty, better not to pursue it. Because, if a Judge is too ambitious to achieve something materially, he becomes timid. When he becomes timid there will be a tendency to make a compromise between his divine duty and his personal interest. There will be a conflict between interest and duty.”

In 1973, the Supreme Court in the case of Kesavananda Bharati v. State of Kerala held “independence of the judiciary” as the basic structure of the Constitution.[7] Declaring the “Independence of Judiciary” as the basic structure shows the importance of the position it finds in the pursuance of receiving justice. This position after this judgement could not even be altered through a constitutional amendment.

It cannot be ignored that the pre-retirement opinions and judgements of a judge will be marked on the scale of their post-retirement jobs. The post-retirement jobs of judges can have a great impact on their pre-retirement work so much so that it can even shackle the pillars of the judiciary. It is of prime importance that the judges even after their retirement remain devoted to the integrity and independence of the temple of justice (the Judiciary).

Post Retirement Jobs and associated risk for the Judiciary

Judges are conceived as people of wisdom, valour, and independence. Their appointment, tenure, salary is free from any undue pressure from both the legislature and the executive. The provisions of Contempt of Court do not only apply to Judiciary as an institution but also applies to the Judges. Their decisions and opinions had large impacts on the perception of judicial institutions. These powers, rights, and duties impact the life of the judge not only when he/she is in the office but also when they are away.

Justice relies heavily on perception. In the High Court of Judicature at Bombay vs. Uday Singh, the Apex Court has opined that the maintenance of discipline in the judicial service is of paramount importance. To quote the Apex Court, the bench of Justice K. Ramaswamy and D.P. Wadhwa mentioned that,

“Acceptability of the judgement depends upon the credibility of the conduct, honesty, integrity and character of the officer. The confidence of the litigating public gets affected or shaken by lack of integrity and character of Judicial Officer.”[8]

The post-retirement jobs for a judge could have a large impact not only on the judiciary as a system but also on judicial pronouncements made by the judge before the retirement. It would not be wrong to subscribe to the idea that judges are not only the people of wisdom but they are hermits who had enormous responsibility on their shoulders.

Supreme Court in the case of Daya Shankar vs. High Court of Allahabad has mentioned that it is important that the judges retain their honesty and integrity not only in the office but also when they are away from it. The Apex Court mentioned that,

“Judicial officers cannot have two standards, one in the court and another outside the court. They must have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy.”[9]

The judge is appraised not only by his judgement but also by his character. The post-retirement actions of the judge are not restricted to himself rather they had the potential to shackle the pillars of the paramount system of seeking justice i.e., the Judiciary. This is the weight of the standard that the public has placed on the shoulder of the people in such high offices of institutional integrity. Therefore, any departure from the pristine values either prior or post-retirement can shake the foundation of the judiciary and that could be the death knell of democracy.

Integrity and honesty are the hallmarks of judicial probity. The Apex Court in the case of High Court of Judicature vs. Shashikant Patel has talked about the confidence of people that is placed on the shoulder of a judge. Any harm or dishonesty towards the integrity of the institution could have a massive impact on the institution. The Apex court mentioned that,

“Dishonesty is the stark antithesis of judicial probity. Any instance of a High Court condoning or compromising with a dishonest deed of one of its officers would only be contributing to erosion of the judicial foundation. Every hour we must remind ourselves that the judiciary floats only over the confidence of the people in its probity. Such confidence is the foundation on which the pillars of the judiciary are built.”[10]

The Apex Court further in the judgement has opined on the difference between the judiciary and other services. The court discussed the responsibility and the trust which comes with each judicial post. Speaking for the bench, Justice K.T. Thomas opined that,

“Judicial service is not merely an employment nor the Judges merely employees. They exercise sovereign judicial power. They are holders of public offices of great trust and responsibility. If a judicial officer “tips the scales of justice its rippling effect would be disastrous and deleterious”. A dishonest judicial personage is an oxymoron.”

A need for a Cooling Off period

The independence and integrity of Judiciary are of utmost importance while delivering justice to the victim. It is also important that the people retain their faith in the justice delivering system of the country. It is lucid that any post-retirement appointment under government had the potential to shackle the pillars of the Judiciary, however, at the same time, it would be wrong to squander away the years of experience and expertise that a judge possesses. It is of prime importance that a mechanism is established through which the years of experience and expertise could be channelised back to the system.

Former Chief Justices of India like Justice Kapadia, Justice Lodha and Justice Thakur suggested for one such mechanism i.e., setting of a “cooling off” period. There is a need that judges after his/her retirement should not take any constitutional or political post. For the fulfilment of the same, there should be an amendment in Article 124 (7) of the Constitution. Article 124 (7) of the Indian Constitution prohibit Judges of the Supreme Court to plead or act in any court or before any authority within the territory of India after their retirement.[11] It is important that the Article should be further extended to prohibit judges from being appointed at some crucial post for two years after their retirement.

The changes through the amendment under the article would discredit the allegations made against the independence and integrity of the Judiciary. Further, it will clear the air around the judge’s pre-retirement judgements with his/her interests in the post-retirement post. Additionally, it should be ensured that the cooling-off period is restricted to only certain appointments like President, Governor or Member of Parliament. This would ensure that the experience and expertise of a judge do not squander away and is channelised back to the system.

International Practice

Post-retirement jobs of a Judge and the corresponding effect on integrity and independence of Judiciary is contested among the experts all over the world. A retired judge is conceived by the general public as a representative of the judiciary.  In this respect, several nations have brought up several guidelines related to the judicial conduct of judges. These guidelines are made to avoid any activity which may tarnish the reputation of the Judiciary.

In the United Kingdom and Australia, there are no express provisions prohibiting the judges for their post-retirement engagement in politics, however, their guide to judicial conduct recommends to avoid any activity that could tarnish the reputation of the Judiciary.[12] England and Wales further forbid Judges from any government service after retirement. Similarly, in South Africa, post-retirement judges are neither allowed to be a director of a public company nor become a member of a professional partnership or body corporate. Judges are also not allowed to enter into any party politics after their retirement.[13]

In Canada, the provision which prohibits the judge from its involvement from political activities no longer applies once he/she gets retired. However, after the SNC-Lavalin affairs (a high-profile political issue) wherein there was the involvement of retired judges in a controversial deal have caused the experts to question upon the ethics of the retired judges. There are now opinions raised by the expert to bring in the cooling-off period to protect the independence of Judiciary. Following the case, The Canadian Judicial Council and the Federation of Law Societies will be formulating ethical guidelines for the retired judges in order to protect the integrity and independence of the judiciary.[14]

The USA and many other countries provide life term for judges, therefore in such countries, there is generally no involvement of judges in any unethical participation in political activities post their voluntary retirement.

Conclusion

The responsibility on the shoulder of a judge does not come to an end after his/her retirement. Even after retirement, the judge needs to display a standard of rectitude, honesty, and integrity towards the Judiciary. The post-retirement appointment of judges happens to erode this independence of the judiciary and creates a threat to the integrity of the system.

It is the need of the hour to form a mechanism to regulate post-retirement appointments of Judges. There should be a cooling-off period between the retirement and the next appointment of judges. The former CJI- R M Lodha recommended a cooling-off period of at least 2 years. The existence of such a provision would eliminate the chances of hampering the independence and integrity of the judiciary.

It is high time that specific standards are established for the people serving in the temple of Justice. However, most of the time these standards should be more self-imposed than imposed. The judge is not only regarded by his judgements but also by his character in promoting integrity and independence of the system. Therefore, any departure from these codes of discipline would shake the pillars of justice. As the saying goes, the judge will always remain a judge so it is important that even after retirement, the judge follows certain ethical principles to retain the integrity and independence of the system. 

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