Editor’s Note: In this article, Namratha Murugeshan critically assesses the executive government’s power to appoint retired judges to tribunals and commissions (post-retirement appointments). She first underscores the impact that these post-retirement offers have on judicial independence and second, appraises the suitability of judges as members of tribunals.

Recently Supreme Court Justice A.K. Sikri was caught in the eye of the storm when he was offered a seat on the Commonwealth Secretariat Arbitral Tribunal (CSAT) in London. The cause for controversy was the timing at which the post was offered by the government. The news of it broke almost immediately after the judge voted for the removal of Alok Verma as Director of the Central Bureau of Investigation (CBI), in tandem with the vote of Prime Minister Narendra Modi, both of whom were members of the “High powered Committee”. This decision came from a select panel that was formed to decide the fate of Alok Verma as the CBI Chief, following his feud with Rakesh Asthana, the CBI Special Director. While Justice Sikri did eventually turn down the offer to avoid any further controversy, the issue brings into focus the need for regulating post-retirement government-nominated appointments of judges.

Context Setting

The present upper-age limit for retirement of Supreme Court judges is 65 years and 62 years for High Court judges as provided for under Articles 124 and 217 respectively of the Indian Constitution. T.T. Krishnamachari, during the drafting of the Constitution, proposed the age of retirement to be 60 as that was seen to be when there was depreciation in the mental faculties of persons. With improvements in medical science, technology and lifestyle over the past 7 decades, it can easily be argued that even the increased retirement age of 65 cuts short what could otherwise be very productive years on the Bench.

Given the increased life expectancy, the period after retirement is often fraught with questions of financial insecurity. As George Gadbois Jr. points out in his book Judges of the Supreme Court: 1950-1989, retirement was often seen by judges just as a break from their careers before pursuing other activities that would ensure them an income. He also highlights the inadequacy of judges’ pensions, thereby making stronger an argument for wage revisions in the judiciary. Further, years of invaluable experience can no longer find a use in the place it is most needed – the judiciary itself. With the tribunalization of adjudicatory processes, one of the prime reasons for appointment of retired judges was to balance expert domain knowledge of the tribunal members with the legal acumen and judicial compassion of judges.

However, the very obvious problem with this system was how the pursuit of a post-retirement role would impact the current (in-tenure) decision-making role of judges. The most common criticism is that it could lead to judges aiming for political appeasement of the then executive government while rendering judgments.

Issues

This, of course, is a serious charge against the institutional integrity and the independence of the judiciary. The issue of judicial appointments, however, has majorly been focused on the collegium and the National Judicial Appointments Committee (NJAC). The concern of post-retirement judicial appointments can be viewed from twin perspectives: first, the idea of the threat it poses to judicial independence and second, with respect to the suitability of judges in their appointment to tribunals.

Taking on the first issue, the need for judicial appointments in tribunals arises either because it is mandated by statute or simply to make up a supply-side shortfall of judicial expertise in matters that very clearly concern specialized laws. The reasons judges also favour taking up such roles is that if they do not have any other source of income, their earnings face a steep fall after retirement as their pension is only 50% of their last drawn salary. For example, if a judge received Rs. One Lakh as their remuneration in the last month of their service, their retirement pension would be Rs. Fifty Thousand. Whereas judges appointed to tribunals and commissions earn on par with their full salaries. Therefore, rational economic behaviour would push judges towards taking such positions. While there are ample causes to show why judges may be incentivized to pick these roles, it is the path towards the same that needs to be problematized. Post-retirement positions are necessarily political appointments. The openings of post-tenure positions seem more accessible to judges who render politically favourable decisions. Of course, one need not make aspersions regarding the integrity of judges; however, evidence suggests that this is a ‘rational behavioural response to perverse institutional incentives.’

For appreciating the second issue on the suitability of judges for tribunals and commissions, it needs to be acknowledged that the appointment of judges in tribunals and commissions has not necessarily been towards the fostering of subject-matter expertise of specialized tribunals but rather has only focused on judicial expertise. While this is undeniably a very valuable addition to tribunals, and knowledge and experience of judges must be given their due regard, it cannot be said to be a step towards securing the goals for which the tribunal/commission was set up.

What can be done

When looking towards solutions, one needs to acknowledge the role played by retired judges in tribunals and commissions and how, if this system of appointments is demolished, the vacuum created by the same can be filled.

Supposing there is a complete prohibition of judges taking up these positions as proposed by many eminent legal personalities like Justice A.P. Shah and senior counsel Raju Ramachandran, then there must be an alternative structure in place, perhaps similar to the judicial academy which creates a supply of specialized judges to tribunals and commissions. Additionally, statutorily mandated appointment of judges in administrative bodies must be removed for this suggestion to achieve success. If a cooling-off period, as suggested by Arun Jaitley and Soli Sorabjee, is seen to be a better alternative, then this period needs to be determined as expeditiously as possible to prevent further controversy from arising. From the perspective of retiring judges, pensions need to be increased to ensure that they do not see themselves as becoming financially vulnerable post-retirement.

Finally, the question of retirement age needs to be discussed and deliberated thoroughly to make a move towards a higher retirement age that would not only safeguard against judges taking up post-retirement positions but also institutionally help deal with the issue of pendency rates of cases given their increased tenure.