judiciary credibility enhancement

Enhancing the credibility of the judiciary
By Dharam Vir

NOW that the issue of judicial accountability is engaging the attention of the stakeholders, an important question that needs to be revisited is that of employment of retired judges of the Supreme Court and High Courts after they demit office.

The question of imposing some sort of restraint on re-employment of members of the higher judiciary was considered by the founding fathers in the context of the need of insulating them against the lure of a life after retirement.

The founding fathers had visualised the higher judiciary as one of the sentinel institutions of the nation’s polity along with other institutions like the Comptroller and Auditor-General of India (CAG), the Public Service Commissions and the Election Commission. To recall from the concluding observations made by the Constituent Assembly, President Dr Rajendra Prasad on November 26, 1949, just before the adoption of the Constitution, the CAG “would keep a watch on the nation’s finances” (ultimately, as one of the Constituent Assembly members had put it, “it is the money that counts”); the Public Service Commissions would guard against “any possibility of jobbery, nepotism and favouritism in employment to public services”; and the Election Commission would ensure “honest and straightforward” election by the voters.

“We have provided in the Constitution”, said Dr Prasad, “for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Courts independent of the influence of the executive.”

Accordingly, the Constitution has tried to ensure that these sentinel institutions are enabled to function without fear or favour. These institutions have been placed beyond ‘fear’ of the consequences of their decisions and orders by the constitutional provisions relating to the security of employment as well as the terms and conditions of their service neither of which can be abridged by the executive. The CAG, the Chief Election Commissioner and the Judges can be removed from office only after following a rigorous and elaborate procedure culminating in impeachment by Parliament, while a member of a Public Service Commission can be removed from office after an inquiry by the apex court.

Additionally, there are severe constraints on the appointment of members of the Public Service Commissions and the CAG to any further office after they demit office. The eligibility of a member of a State Service Commission for any further office is limited to the office of the Chairman of a State Service Commission or a member/Chairman of the Union Public Service Commission; and a member of the Union Public Service Commission is eligible for appointment only to the office of the Chairman of the UPSC. However, there is a total estoppel on appointment to any further “office under the Government” (more on this later) of the CAG and the Chairman of the UPSC.

Dr Ambedkar had ruled out a similar restraint on the eligibility of the members of the higher judiciary for any further office on grounds of what he called “a fundamental difference” between members of the judiciary and the members of a Public Service Commission. Between the Public Service Commission and the executive, said Dr Ambedkar, “the relation is a very close and integral one;…the Public Service Commission is at all times interested in deciding cases in which the executive is vitally interested” and the Public Service Commission members needed to be insulated against the temptation of a further office for carrying out the wishes of the executive.

On the other hand, “the judiciary decides cases in which the government has, if at all, the remotest interest, in fact no interest at all. The judiciary is engaged in deciding cases between citizens and very rarely between citizens and the government. Consequently, the chances of influencing the conduct of a member of judiciary are very remote” and therefore “the provisions which apply to Public Service Commission have no place in so far as the judiciary is concerned”. In this context, the Constituent Assembly also took note of the outstanding work done by some of the members of the higher judiciary in post-retirement assignments.

The members of the higher judiciary are appointed through a rigorous process of screening, which despite the recent criticism of the institutional framework regulating such appointments, inter alia provides an assurance of a judicial backbone that will not bend when faced with temptations and allurements.

The higher judiciary has an enviable record and reputation for being extremely independent; some would even say being frustratingly independent. The universal chorus of demand for a judicial probe into any major event is also indicative of the confidence of the common man in the higher judiciary. Also, appointments to some of the recently-created commissions are made through broad-based and transparent selection procedures involving inter alia the leader of the opposition which provides a modicum of assurance against any sort of payback by the executive to the judiciary. And yet the public perception does matter.

The post-retirement appointment of members the higher judiciary exposes them to a double whammy with both, even the best judicious pronouncements and the most meritorious post-retirement appointments, inviting the needle of suspicion. Also, it immediately invites comparison with the constitutional estoppel on eligibility of the CAG and UPSC Chairman for appointment to any further office.

The post-retirement appointments of members of the higher judiciary to inquiry commissions carries the additional risk of silent (and some time not so silent) but wholly unjustified imputation of prolongation of the so-called cushy assignments when the delays in the completion of their proceedings can be substantially, if not wholly, traced to the time taken by the executive in providing the minimum necessary enabling infrastructure and the quality and timeliness of the response and attitude of the stakeholders.

In the circumstances, the suggestion of an estoppel on further employment of members of the higher judiciary needs to be seriously considered and it may find resonance even amongst the members of the higher judiciary. But additionally, the restraint on the re-employment of judges should be accompanied by simultaneous increase in the strength of the members of the higher judiciary that provides an inbuilt cushion for meeting the requirements of inquiry commissions which should be manned by the serving judges. Also, the retirement age of the judges and the age for the commissions should be appropriately aligned.

Additionally, (and this applies in the cases of the CAG as well as the UPSC Chairman), the expression “office under the government” used in the Constitution in regard to the estoppel on further employment should mean, if necessary through a suitable amendment to the Constitution, to include every such employment that is made on the advice or recommendation of the executive. To illustrate, the ban on re-employment should also apply to the offices like those of the Governor, which are strictly not under the government.

And, finally, a concluding suggestion. Similar restrictions should be placed on the Election Commissioners as well. A former Union Home Secretary who also occupied the office of the Comptroller and Auditor-General of India has recently disclosed how a Chief Election Commissioner was tempted with the offer of appointment as Governor just to secure a change in the already notified date of election to the office of the President to suit astrological predictions.