Siddhant Kohli
The Learned Attorney General of India, Mr. KK Venugopal represents the best of this profession today. Widely accepted amongst India’s most venerated lawyers, he is one of the few Attorneys General who have taken a principled stand against the Government of India in deciding the strategy for briefs he argues, in line with the spirit of the high Constitutional office he holds, and in sync with the exalted values and traditions set forth by the first Attorney General of India, Mr. MC Setalvad.
At the retirement function of outgoing Chief Justice of India Dipak Misra organized by the Supreme Court Bar Association, Mr. Venugopal added his voice to the debate on the age of retirement of judges, post-retirement jobs, and the salaries and emoluments earned by the judges while they hold office and on retirement.
Mr. Venugopal emphatically disagreed with the growing clamor amongst the legal fraternity and the public at large against judges accepting post-retirement jobs. Calling it akin to putting years of worthy experience in vain if they were not to accept post-retirement jobs, the Attorney General expressed his concern on how Tribunals and Commissions would function in the absence of retired judges. He then proceeded to recommend raising their retirement age and remuneration manifold.
This is not the first time that Mr. Venugopal has put forth his views on this debate. At the retirement function of Justice AK Goel in June this year, he strongly urged the government to raise the retirement age of Supreme Court Judges from existing 65 to 68 years.
On Post-Retirement jobs
These views presented by the Attorney General merit a degree of discussion. On the question of post-retirement jobs, Mr. Venugopal’s primary grouse appears to be that judges, at the age of retirement, have several good years left ahead of them which must be put to use within the third branch of government itself.
Questions of public perception on independence of the judiciary and judicial bias aside, the primary fact remains that judges who seek post-retirement jobs may seek to ingratiate themselves to their future employers, in this case, the Government of India (also the largest litigant in the country).
Even assuming that no such exercise is undertaken by judges, the question of appearances and perception must rule from front and centre. The practice followed by high Constitutional functionalities must not suffer from an infirmity this grave, which allows for even the distinct possibility of a judge acting in an unseemly manner.
Additionally, the acceptance of post-retirement jobs leaves newly retired judges open to political criticism from the opposition, who use it as an excuse to not only cast aspersions and insinuations on the government of the day and the judges who accepted these jobs immediately on retirement, but also on the Court, the Judicial system, and the judgments and orders passed by these judges while in office. This gets exacerbated when judges take up these appointments within days of retirement, as was done recently for appointments to the National Consumer Disputes Redressal Commission and the National Green Tribunal. Issues of propriety also flare up in cases of purely political appointments, such as if judges on retirement become Governors.
In fact, the fourteenth Law Commission Report, incidentally headed by Mr. Setalvad, recommended that judges should not take up post-retirement jobs from the government. Significantly, several Judges of the Apex Court have in the past avowed not to take any post retirement jobs, including Justice Jasti Chelameswar, Justice JS Khehar, Justice RM Lodha, and Justice SH Kapadia.
Significantly, Justice Lodha had presented a radical proposal to then Prime Minister, Dr. Manmohan Singh, seeking to usher in a system under which all Supreme Court and High Court Judges would be given an option three months prior to retirement to either get full salary (minus other benefits) for 10 more years after their retirement, or get pension as fixed under the law. Only those who opted for full salary would be empanelled for selection for posts that require retired Supreme Court or High Court judges. Such judges who opt for full salary would not be allowed to take up any private work, including arbitration.
On the Age of Retirement
The other solution, as put forth by the Attorney General himself, is to increase the age of retirement. It appears that one of the primary reasons of fixing the retirement age as sixty by the Constituent Assembly at the time, as given by Mr. TT Krishnamachari, member of the Drafting Committee, was that sixty was generally considered to be the time around which a person started losing full control of his mental faculties.
Mr. Krishnamachari, however, graciously conceded,
“If ten or fifteen years hence conditions of living in this country vary and medical science improves considerably so that senility can be avoided more or less in the generality of cases of people above the age of sixty, well probably that will be time enough for the Constitution to raise the age. I think for the time being the age of sixty is adequate and safe.”
Today, it can safely be stated that our medical science has improved to a degree that the general populace is strongly in command of their faculties at the age of sixty, and even at seventy, and thus the time is ripe for this age to reflect this updated reality.
In the same breath, such an amendment to the Constitution, while essential, must be brought in to only affect the tenure of judges who are appointed after the amendment has been passed by Parliament, so as not to kindle rumor mongers who state that the amendment was a means to favour or prejudice a certain member currently serving on the Bench.
On Tribunals and Commissions
On the question of how the Tribunals and Commissions of this country are to function in the absence of retired judges, a deep introspection and a structural change is perhaps far more essential than the mere manning of offices by retired judges.
The tribunalisation of the country was brought about on three primary reasons, namely, to decentralise the monolithic administration of justice; to devise participatory models wherever possible; and to have a forum with specialised knowledge for proper dispute adjudication.
The reason for adding retired judges to the panel of these Tribunals was to bring in a degree of judicial approach next to the domain experts, and to ensure that quasi-judicial bodies do not leave the judicial system, to the whims of complete Executive control.
This object can still be achieved by having proper procedural safeguards and training in place, rather than appointing judges who are in the twilight of their careers. The idea of having nimbler bodies for specialised dispute resolution is defeated if the person heading that body is himself cast in the mould of our courts.
On Salaries and Emoluments
On the question of salaries and emoluments of judges while in office and on retirement, there is no objection to the fact that several members of the Bar earn far more than what the judges do. It is even true that several eminent members of the Bar refrain from joining the Bench due to the low remuneration.
This however, is the image in isolation. The salaries which our public functionaries take home must be calculated against the per capita income of the country in mind, which would indicate in real terms the value of the money taken home by these Judges. A quick calculation would reveal that Judges in India take home 6.2 times the median per capita income, as opposed to 4.15 times in the United States, 6.18 times in Canada, and 7.04 times in the England and Wales. Closer to home, judges of the Supreme Court of Bangladesh take home 3.62 times the per capita income of that country, while the number is 6.48 times for Nepal and 16.21 times for Pakistan.
Pertinently, judges in the US have life tenure and even on retirement continue to receive full salaries as pensions. In the UK, judges retire much later and also receive handsome pensions.
Given these figures, calls for further increase in judicial remuneration in India for serving judges may not have substantial backing in facts and perhaps needs a re-think on a larger platform. Pensions and post-retirement remuneration should be increased, to avoid judges from hankering over posts due to want of pecuniary gain or financial security.
In conclusion, it must be stated that judges, like all other humans, are fallible. The indelible words of Dr. Ambedkar as spoken before the Constituent Assembly for the Chief Justice (but equally true for all Judges), and oft quoted, ring as true today as ever in that he too ‘is a man with all the failings, all the sentiments and all the prejudices which we as common people have…’
Our government and our citizenry deserve better systems, empirically researched solutions, and a great degree of thought to the question on post-retirement jobs, salaries, Tribunals and Commissions, and the like. Greater public debate, with revered functionaries such as our Attorney General, is welcome.
The author is an Advocate at the Supreme Court of India.
Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.