The mandatory age of retirement of a Supreme Court judge under our Constitution is 65 years. The National Commission to Review the Working of the Constitution, headed by retired chief justice MN Venkatachaliah and comprising eminent persons, in its report recommended that age of retirement be raised to 68 years. So far the proposal has not been accepted. A majority of Supreme Court judges at the age of 65 are in fine fettle and we lose good experienced judges because of the mandatory age. Of course, there could be exceptions as in the case of a judge whose advancing age becomes manifest in his judgements or a maverick judge whose retirement because of his bulldozer disposal of cases and undignified behaviour on the Bench is a welcome relief to the consumers of justice and the legal fraternity. But such cases are few and far between. All things considered, there is merit in the proposal to increase the retirement age to 68.
What can or should a Supreme Court judge do after retirement? He cannot plead or act in any court or before any authority owing to the mandate of Article 124(7) of the Constitution. At present, on retirement, a Supreme Court judge receives not full pension but a monthly pension which is less than the amount of his last drawn salary.
Should Supreme Court judges after retirement be prohibited from acting as an arbitrator? Awards given by Supreme Court judges are challenged in district courts or high courts depending on the order of reference to arbitration. The underlying rationale is that successfully challenge to awards will not redound to the credit of the retired Supreme Court judge and will lower the image of the apex court. But remember that in many cases retired Supreme Court judges received pathetically low remuneration when they were judges in the high court. Retired Supreme Court judges do not live on love and fresh air. Besides, parties by their choice of arbitrators can have an excellent arbitral tribunal whose award would be final subject to limited grounds of challenge, which is far preferable to adjudication of disputes by the district court, then the high court and ultimately by the Supreme Court.
The fact that some retired judges prolong arbitration proceedings is not a valid reason to restrict the fundamental right under Article 19(1)(g) of other judges who conscientiously conclude arbitration proceedings in reasonable time. It is admirable that some retired Supreme Court judges, eg former chief justices MN Venkatachaliah and JS Verma and justice Ruma Pal, by a self-denying ordinance, decline to act as arbitrators. However, there should be no constitutional embargo on retired judges acting as arbitrators.
What about retired Supreme Court judges giving legal opinions, which invariably are flaunted by parties before courts and judicial authorities? Judges of the Supreme Court and high court strongly disapprove of opinions of retired judges which are annexed to the pleadings or cited in argument and refuse to look at them. However, this cannot be said of tribunals and judicial authorities who are likely to be influenced by the opinion. The purpose of an opinion is to render legal assistance to the client and not to influence judicial authorities. Therefore, it must be expressly stated in the opinion that the opinion should not be cited before any court or tribunal or authority or any government department or any adjudicating body. In that case parties will not seek a written opinion and may have to content themselves with oral advice which would enable them to decide their course of legal action.
A vexed issue is whether a retired Supreme Court judge should be appointed as the president or chairman of a tribunal or head a Commission of Inquiry. It is desirable that a retired Supreme Court judge does not head a Commission of Inquiry, which, by virtue of its terms of reference, has strong political overtones. Experience has shown that in such cases whatever may be the ultimate report, the commission and its presiding judge will be subject to carping, abusive criticism. As regards tribunals, much would depend upon the nature of the tribunal and the functions it is required to perform. A competent judge and especially one experienced in the field in which the tribunal exercises its functions would enhance the standing of the tribunal and impart credibility to its functioning and its orders.
However, one caveat needs to be entered. No retried judge of the Supreme Court should be appointed to head any tribunal soon after his retirement except where his appointment is provided by statute as in the case of chairman of the National Commission on Human Rights. Appointment process takes time and must have been initiated during the period the appointee was a sitting judge.
The public perception in the present environment of distrust and cynicism can well be that the judge in view of his prospective appointment was inclined as a sitting judge to pass orders favourable to the government. Justice Sharma's appointment as chairman of Vansadhara Water Dispute Tribunal and justice Katju's appointment as chairman of the Press Council were made promptly after their retirement. There is no doubt that their prospective appointment did not in any manner affect the discharge of their judicial functions.
Justice is rooted in confidence and confidence is the bedrock of judicial independence. Public perceptions cannot be brushed aside. Therefore there should be a cooling period of six months or a year before the appointment of a retired Supreme Court judge to a tribunal or any other judicial body. This should dispel apprehensions in the matter and sustain public confidence in the integrity of the judicial system and the independence of our Supreme Court judges.
(Soli Sorabjee is former attorney general of India. The views expressed by the author are personal.)