Day 79 – Q.3 What are the ethical and constitutional implications of senior judges accepting constitutional posts after retirement? Can such appointments be reconciled with the principles of judicial independence and impartiality? Critically examine.

What are the ethical and constitutional implications of senior judges accepting constitutional posts after retirement? Can such appointments be reconciled with the principles of judicial independence and impartiality? Critically examine.

सेवानिवृत्ति के बाद संवैधानिक पदों को स्वीकार करने वाले वरिष्ठ न्यायाधीशों के नैतिक और संवैधानिक निहितार्थ क्या हैं? क्या ऐसी नियुक्तियों का न्यायिक स्वतंत्रता और निष्पक्षता के सिद्धांतों के साथ सामंजस्य स्थापित किया जा सकता है? समालोचनात्मक जाँच कीजिए।

Approach

Candidates can start the answer with giving basic idea about constitutional post for judges post retirement and then simply write the implication of post retirement appointment also do critical analyse how it affects principle of Independence and Impartiality.

Introduction

In India, it is also common for senior judges to accept constitutional posts after retirement. In fact, the Constitution of India provides for the appointment of retired judges to certain constitutional posts also in some instance judges took posts which were not reserved for them.

Body

The appointment of senior judges to constitutional posts after retirement raises several ethical and constitutional implications. Some of these implications are:

• Conflict of Interest: The appointment of retired judges to constitutional posts may create a conflict of interest if the post is related to their previous work as a judge. For example, a retired judge appointed as the Chairperson of the National Human Rights Commission may have to deal with cases that they had previously adjudicated on as a judge.
• Independence of Judiciary: The appointment of senior judges to constitutional posts after retirement may raise concerns about the independence of the judiciary. If judges are seen to be angling for such appointments, it may lead to questions about their impartiality and independence while they were on the bench.
• Appointment Process: The appointment of retired judges to constitutional posts is often done by the government. If the government has the power to appoint such posts, it may lead to concerns about politicization of these positions and the possibility of appointments being made on the basis of political affiliations rather than merit.
• Constitutional Validity: The appointment of retired judges to constitutional posts may also be challenged on the basis of constitutional validity. This is because the Constitution provides for an independent judiciary, and the appointment of retired judges to constitutional posts may be seen as undermining this principle.

The appointment of post-retirement judges to constitutional posts is a complex issue, and there are arguments on both sides about whether it can be reconciled with the principles of judicial independence and impartiality:

• It can be argued that post-retirement appointments can be reconciled with these principles, as the judges in question have already retired from their previous positions and are therefore no longer serving as active judges.
• They may bring valuable experience and expertise to their new roles and can contribute positively to the functioning of these institutions.
• Additionally, their appointment to constitutional posts can be seen as recognition of their long and distinguished careers in the judiciary.

However, on the other hand, there are significant concerns about the potential impact of post-retirement appointments on the principles of judicial independence and impartiality:

• Firstly, it may create a perception of bias, as the judges may be seen to be beholden to the government or the ruling party that appointed them to the constitutional post.
• This could undermine public confidence in the independence of the judiciary and lead to a loss of trust in the justice system.
• Secondly, there is a risk of conflicts of interest. If a post-retirement judge is appointed to a constitutional post that deals with matters related to their previous work as a judge, this could create a conflict of interest and raise questions about their impartiality.
• For example, if a retired judge who has previously presided over a case involving a particular corporation is appointed to a regulatory body that oversees that same corporation, this could create a perception of bias and undermine public trust in the regulatory body.

Conclusion

The process of appointment should be transparent and merit-based, rather than influenced by political considerations. Ultimately, the appointment of post-retirement judges must be made with great care to ensure that the integrity and independence of the judiciary is not compromised.