This article is written by Magaonkar Revati, a student pursuing BA-LLB (Hons.) from Dayanand College of Law. This article is dealing with the post-retirement ethics of a judge and other concepts relating to this in detail.
Table of Contents
Introduction
The judiciary has always tried to be an independent authority. There are so many provisions to protect the independence of the judicial system by empowering its system and the judicial officers. The Constitution of India itself has given great importance to the judicial system, it has convinced it to provide a better and prideful place to the judiciary. The Constitution has vested some rights in the judges for securing and protecting the independence of the judiciary. The part fifth of Chapter four of the constitution and Part six of Chapter five deals with the constitution and establishment of the High Court and Supreme Court particularly. To promote the independence of the judiciary certain important points and steps are given by the Constitution of India such as fixation of the salaries of judges, retirement age, appointment, their security of service, the prohibition to practice after retirement. Because of these provisions, the imagination of the framers to form an independent and ambitionless judiciary of the constitution is getting canvassed.
Law commission has highlighted the issue as the framers of the Constitution have objected that if such urge of retired judges to be appointed for higher positions is not resolved then it can result in abuse by the executive. Hence, the Law Commission in its 14th Report has highlighted the issue and has also asked for a restriction on retired judges for accepting such posts under the government and it also mentioned that such appointment can be a drawback for the independence, justice, honesty, and integrity of the judiciary.
Ethics of the judges
In a democratic society, the judiciary being the custodian of constitutional rights cannot be above public responsibility. Hon’ble justice Mr. Mukharjee and S.H. Kapadia, CJ of India, has said that “When we talk about ethics, the judges normally comment upon ethics among politicians, students, professors, and others. But I would say that for a judge also ethics, not only constitutional morality but even ethical morality should be the base.”
Code of ethics of a judge
- Judicial decisions given by the judges have to be honest, as the life of the judges is full of public confidence in their role in society, hence the judicial decision given by them has to be honest and fair. No decision is considered honest until it is decided in the response to an honest opinion formed in a matrix of the judges.
- The basic code of ethics for a judge is a principle that no man can be the judge in his cause or matter. This rule not only applies where the judge is a party to a case but in such cases also where he/she has an interest.
- The judges should not have to administer justice, “Fiat Justitia, ruat caelum” which means “let justice be done though the heavens fall.” This code of ethics should be followed by the judges as a motto.
- The parties to a case or suit must be treated as equal and following the principles of law and equity. A judge doesn’t belong to any class or group of people or section, that person is a judge for all people.
- A judge should maintain a proper distance between the relations, acquaintances, and parties to the dispute, their advocates. They must have a cautious outlook and approach.
- A judge should not participate too much in the activities of social functions. A judge must avoid doing this.
Prohibition of practice after retirement
It is the rule that the judges of the Supreme Court and the high court cannot practice after their retirement like the lawyers. They get a good pension but they are not permitted to practice after retirement. This restriction is laid down on the judges because they should not feel obliged or required during the period of holding the position as a judge to any other potential employers. The other reason is that they can easily influence their colleagues in the judiciary if they get permission to practice.
The Constitution of India says that once the high court judges get retired they cannot practice in that court itself and the lower courts, but they can practice in other high courts and the Supreme Court. The Constitution doesn’t prohibit the judges of the Supreme Court and high courts from taking any post-retirement jobs and it also doesn’t restrict the power of government to appoint any retired judges for any commissions or tribunals etc. The government appoints retired higher judiciary judges as heads of various commissions.
How post-retirement jobs can associate risk to the judiciary
The judges are always considered independent, and as people of wisdom and bravery or courage and their appointment, period, or tenure of work, salary is always free from any influence and pressure of executive and legislative bodies. The powers, rights, and duties of the judges not only apply while they are at the respective courts but also apply when they are away.
In the case of Bombay vs. Uday Singh, the court had said that justice relies heavily on perception. The high court has given its opinion as the maintenance of the discipline in the judicial services is of most importance. To highlight the sentence, the high court bench has mentioned that, the acceptability of the judgment depends upon the credibility of the honesty, integrity, conduct, and character of the officer. If there is a lack of integrity and character of the judicial officer, the litigating public gets affected by it. The post-retirement jobs of the judges can have a major effect on the integrity of the judiciary as well as judicial procurements which are made by the judges before retirement. It is the fact that the judges are not only the people of wisdom but they are also solitaires having large responsibility on their shoulders.
The judge is not only known by his judgments but also by his behavior and character. The post-retirement actions of a judge are not only restricted to himself but can hurt the pillars of the judicial system. Thus the public has put this burden on the shoulders of persons with a high official of institutional integrity. So if it deviates from its immaculate values when the person is in the position of a judge or after retirement, it can shake the roots or foundation of a judiciary and hence it can cause huge harm to democracy.
Judgment
- The Apex Court in one of its judgments has given its opinion on the difference between the position of the judiciary and other services. It has discussed the responsibilities and the trust that comes with the specific posts of the judiciary. On behalf of the bench justice, K.T. Thomas has given his opinions as “Judiciary is not merely employment nor the judges merely its employees. They exercise sovereign judicial power and are the holders of great trust and responsibility. If the judicial officer “tips the scales of justice its rippling effect would be disastrous and deleterious”. A dishonest judicial personage is an oxymoron.
- In the case of Daya Shankar v. High Court of Allahabad, the Supreme Court has mentioned that it is important to note that the judges retain their honesty and integrity not only in the courts but also when they are away from it. They also mentioned that judicial officials cannot have two different standards, one in the court and another outside. They should have only one standard, and that is honesty, integrity, and justice. Even they cannot remotely act unworthy of the office they occupy.
Suggestions for the judges: post-retirement
It is said that the independence and integrity of the judicial system are of paramount importance at the time of delivering justice to the victim. Following are some suggestions given by the eminent persons for the retired judges while considering the work or job they will want to do post-retirement:
The requirement of the cooling-off period
While delivering justice to a victim, independence and integrity have so much importance in the judiciary. Another most important point is that the people who approached the judiciary for justice should have faith in the judiciary system of the nation. It is much clear that the appointment of judges post-retirement in the government authority can easily shackle the support system, pillars of the judiciary. But we cannot decline the experience and knowledge possessed by the judges till their retirement. A mechanism has been established by the law which channels their experience and expertise back to the system. Former Chief Justices of India such as Thakur, Kapadiya, etc. have mentioned and suggested such a mechanism for setting a “cooling off” period.
They said that judges should not hold any political or constitutional posts after their retirement, it resulted in an amendment in Article 124(7) of the Constitution of India, it prohibits judges of the Supreme Court to plead, act in any court in India or before any authority after their retirement. It is said that the amendment should be further extended for prohibiting judges from being appointed to important positions till two years after retirement.
International practice
A retired judge is imagined as a respected representative of the judiciary by the people in society. Due to this respect, some countries have brought up some new guidelines relating to the judicial conduct of the judges. These guidelines are made by some countries to protect the judiciary from stigmatizing its reputation.
The United Kingdom and Australia don’t have the expressed provisions regarding the prohibition of post-retirement jobs or engagement in politics of the judges but their guide to judicial conduct has recommended avoiding any such activities which may cause harm to the reputation of the judiciary.
Post-retirement limitations
After the retirement from the woolsack, a Lord Chancellor cannot go back to Bar and the other judges also prohibited from entering or going back into the Bar. They are not even allowed to enter into a business or to step into politics. Though these traditions have not been followed properly.
Returning to the Bar
Judges cannot go back to the Bar. There is not any specific ruling or provisions to this effect concerning High Court judges. There is a formal ruling of Bar that a judge cannot return in any condition to the Bar or practice. However, these rules are flexible. In one of the exceptional cases, a stipendiary magistrate was allowed to go to the court. An Irish judge who was retired was allowed to practice in England. The argument made against the point that returning the retired judge to practice at Bar is that it can give him an unfair advantage over other members of the Bar. Hence this rule depends upon the long-established and ruled tradition which has not been questioned ever.
Entering into politics
Generally, entering into politics after retirement from the bench is regarded as less objectionable than going into a business so because of this it might be viewed as a public service. It is not clear whether there is or has been a provision to prohibit judges from entering into politics post-retirement. It is a true statement that except for the lord’s reading judges have not gone into politics after the resignation from the bench.
Conclusion
Therefore, it should not be ignored that the pre-retirement opinions and the judgments of the judge will be on the top priority on the scale of their post-retirement jobs. Such post-retirement jobs can have a great impact on the pre-retirement work they have done while they were in the post of the judge. It can fetter the pillars of the judiciary. So it is really important to note that the main importance even after the retirement of the judges, should remain devoted to the integrity and independence of the judiciary.
References
- https://www.latestlaws.com/articles/post-retirement-ethics-for-judges-a-critique/
- https://www.barandbench.com/columns/policy-columns/once-a-judge-always-a-judge-the-need-for-a-cooling-off-period-post-retirement
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