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Can’t stop retired judges from taking assignments, says SC
The Supreme Court on Wednesday said that without a presence of such a law, no judge of constitutional courts can be stopped from taking post-retirement appointments, adding it is up to the Centre to make a law regarding the issue
New Delhi: It is for the Centre to bring in a law to regulate post-retirement assignments for judges of constitutional courts, the Supreme Court said on Wednesday, adding that in absence of such a law, it has to be left to the “better sense” of the judge concerned to accept or turn down such offers.
Dismissing a public interest litigation pressing for a mandatory cooling-off period of two years for the judges after they demit office, a bench led by justice Sanjay Kishan Kaul pointed out that it is not for the apex court to either stop a retired judge from accepting a post-retirement offer or to direct Parliament to frame a specific law in this regard.
“The issue of whether a retired judge should accept any office has to be left to the better sense of the judge concerned, or a law has to be enacted, which cannot be a subject matter of this court’s directions under Article 32 of the Constitution. The petition is thus dismissed,” said the order passed by the bench, which also included justice Sudhanshu Dhulia.
The bench was hearing the plea filed by the Bombay Lawyers Association, argued by advocate Ahmad Abdi, who expressed concerns over the ramifications such appointments may have on the independence of judiciary. Abdi added that serious questions arise when a judge, after having dealt with politically sensitive cases, accepts political appointments offered by the executive.
“Let the government enact a law then...And what is a political appointment? It is all frivolous. It is up to the judge to say whether he wants to decline or does not decline,” retorted the bench.
The bench then asked Abdi whether the top court could say nobody should take up a job at a tribunal after retirement even as the laws regulating such tribunals provide for chairmanship of retired judges of the Supreme Court or high courts.
The counsel said the petitioner is talking about only those appointments that depend on the discretion of the executive for which there should be a two year-cooling off period. Observing that a lot of things are left to the discretion of the judge, the bench said the petitioner has picked up one case.
While the petition had mentioned the instance of justice SA Nazeer becoming the governor of Andhra Pradesh, the court chose not to take any name. “You don’t want a particular person to become governor. That is why you have filed this petition. You have picked up this one case,” said the bench, adding it cannot go into these issues under the writ jurisdiction.
At present, there is no law that prevents a retired judge of the Supreme Court or high courts from taking up a post-retirement appointment.
The 2020 nomination of former Chief Justice of India (CJI) Ranjan Gogoi to the Rajya Sabha had also opened up a debate regarding judicial independence.
In February this year, justice Nazeer was appointed as the new governor of Andhra Pradesh.
In 2014, immediately before the Narendra Modi government first came into power, former CJI P Sathasivam took on the position of governor of Kerala just four months after his retirement.
In a 2014 report, the Law Commission of India recommended a three-year cooling off period for judges before they accept any posts offered by the government. The recommendation was, however, not acted upon.
