‘Some post-retirement activity of SC judges is attracting public disapproval’


JUSTICE J S VERMA The recent response of the Delhi igh Court led by Chief Justice A.P. Shah in rejecting the tenuous stand of the Chief Justice of India, K.G. Balakrishnan that the office of CJI and the Supreme Court are above the law (RTI Act) applicable to all public functionaries in our republican democracy, is to be hailed as a welcome blow for transparency and accountability, which are acknowledged principles of standards in public life… The decision first by a single judge, S. Ravindra Bhat’ affirmed on appeal by the full bench of the Delhi High Court is a glaring proof of judicial independence.


The observations of A.P Shah, C.J. speaking for the full bench that “Judicial independence is not the personal privilege of the individual judge’ but a responsibility cast on him”, provide a strong fillip to judicial independence. Chief Justice Shah has articulated the true concept of judicial independence, reiterating the modern view. He has echoed the words of Lord Woolf C.J. in an article wherein he said, “the independence of the judiciary is therefore not the property of the judiciary, but a commodity to be held by the judiciary in trust for the public”. It is time the Chief Justice of India takes the lead in this direction provided admirably by the High Court to bring quietus to the unsavoury controversy threatening judicial independence…

Let me hope that the Supreme Court led by the CJI will now accept the verdict in good grace and not appeal to itself to re-examine its obvious merit of the Delhi High Court judgment! Otherwise, we are bound to go down in the public estimation which would rightly conclude that we do not practice what we preach…

The Bar has a significant role in such a situation. I wish the Attorney General, G.E. Vahanvati’ who appears for the Supreme Court, draws inspiration from some of his illustrious predecessors to advise the CJI against a further appeal by the Supreme Court now to itself… I refrain from commenting on the Dinakaran issue since the proceedings seeking his removal have been commenced and are in progress…

Another issue relevant in this context is of the appointment of judges in the Supreme Court and the High Courts. Chief Justice Balakrishnan asserts that the collegium headed by him is strictly following the decision in the Second Judges case by which they are bound. The general perception voiced eloquently by the executive is that the executive has no part in making these appointments for which the judicial collegium alone is responsible and answerable. It is true that the veto power granted to the executive by the First Judges’ case, AIR 1982 SC 149 is taken away by the Second Judges’ case, AIR 1994 SC 268; but it is not correct that the executive has been denuded of all power in adjudging the suitability of the candidates for appointment. However, greater responsibility does lie in the judicial collegium because of its role under the existing system…

Supreme Court of India

A brief reference to the Second Judges’ case is necessary… The clear language of the decision leaves no room for any doubt that the executive has a participatory role in these appointments; the opinion of the executive is weightier in the area of antecedents and personal character and conduct of the candidate; the power of non-appointment on this ground is expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents, etc., are alone sufficient for non-appointment by the executive. The decision also holds that the opinion of the judicial collegium, if not unanimous does not bind the executive to make the appointment…

Post-retirement conduct of the superior judges, particularly those of the Supreme Court is also relevant enough in this context to require mention.

In addition to the system providing for the appointment of persons of proven integrity as guardian of constitutional values, there is the need for constitutional safeguards to insulate them also from possible executive influence, through temptations in subtle ways, to preserve judicial independence. One such method to penetrate the resolve of even a few of the best is the temptation of lucrative post-retiral benefits given by the executive to a favoured few. The obverse of the constitutional guarantee of security of tenure and conditions of service is the obligation of such constitutional functionaries to the observance of a code of post-retiral conduct eschewing any such temptation. To the extent possible, the needed constitutional prohibitions should also be enacted, to enable the development of healthy conventions. The environment of eroding ethical values calls for this preventive measure. Some instances of post-retirement activity of judges of the Supreme Court (including the CJI) are attracting public disapproval, even if voiced privately. Chamber practice of giving written opinions by name to be used by litigants/parties before court/tribunal or any authority; arbitrations for high fees; doing arbitrations even while heading Commissions/Tribunals and availing the salary, perquisites and benefits of a sitting Judge/CJI are some activities inviting adverse comments and seen as eroding judicial independence. This too is a threat to judicial independence, which must be averted.

Extracts from the first S. Govind Swaminadhan Memorial Lecture at the Madras High Court on January 29, 2010


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