JUDICIARY/COURTS

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Engagement of Supreme Court judges after retirement
by Dr N. Balu*

Cite as : (1998) 8 SCC (Jour) 14

Chapter IV of the Indian Constitution deals with Union Judiciary. Article 124 provides for the establishment and constitution of the Supreme Court. Art. 124(7) provides:

"No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India."

The First Law Commission in its Fourteenth Report considered the question of the Supreme Court Judges taking up employment under the State or the Union after retirement. The Commission was of the view that it was necessary to safeguard the independence of the Supreme Court Judges by enacting a law barring further employment except as ad hoc Judges of the Supreme Court under Art. 128. M.C. Setalvad, the Chairman of the First Law Commission wrote in his autobiography:

"The Commission had, after careful consideration expressed the unanimous view that the practice of Judges looking forward to or accepting employment under the Government after retirement was undesirable as it could affect the independence of the Judiciary. We therefore recommended that a constitutional bar should be imposed on Judges accepting office under the Union or State Governments similar to the bar in the case of the Auditor and Comptroller-General and members of Public Service Commissions."[1]

The word "act" in Art. 124(7) means only acting as a judge as it is preceded by the word plead. Similarly, Art. 220 says that "no person who, after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts". But it is surprising that some statutes explicitly provide that only a retired Supreme Court Judge is to be appointed to the judicial positions under them. This, it is submitted, is against Art. 124(7).

The Consumer Protection Act, 1986 is in point. S. 20(1) provides:

"20. (1) The National Commission shall consist of,-

(a) a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President."

The incongruity of this provision becomes very clear when one examines other provisions of the Act. For Section 23[2]  provides that appeals from the National Commission shall be heard by the Supreme Court.

In other words, the decision rendered by the retired Supreme Court Judge would be scrutinised and corrected by a sitting Supreme Court Judge. This does not seem to be a happy position.

Similarly, the Protection of Human Rights Act, 1993 relating to the National Human Rights Commission, might be examined. Section 3 provides:

"3. (2) The Commission shall consist of-

(a) A Chairperson who has been a Chief Justice of the Supreme Court;

(b) one Member who is, or has been, a Judge of the Supreme Court;"

Section 18 provides:

"18. Steps after inquiry.-The Commission may take any of the following steps upon the completion of an inquiry held under this Act, namely-

(1) Where the inquiry discloses, the commission of violation of human rights, or negligence in the prevention of violation of human rights by a public servant, it may recommend to the concerned government or authority the initiation of proceedings of prosecution or such other action as the Commission may deem fit against the concerned person or persons;

(2) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;"
(emphasis supplied)

Thus under the National Human Rights Commission, the Commission Chairperson and a member, previously the Chief Justice of the Supreme Court and Judge of the Supreme Court respectively, will have to approach the Supreme Court or the High Court for directions, orders or writs, which will be issued only if those Courts deemed it necessary. This is also not a happy position in law.[3] 

The retirement age in the National Consumer Commission is 70 years.[4]  Similarly, the retirement age in the National Human Rights Commission is also 70 years.[5]  Under Art. 124(2) a Judge of the Supreme Court shall hold office until he attains the age of sixty-five years. So if a Supreme Court C.J. or Justice goes for further employment it could be only for five years. However, it is felt that the lease of life for another five years (65 to 70) would certainly affect the independence of the judiciary which is a basic feature of the Constitution.[6]  Article 124(7) is to be considered a salutary provision. It is worth noting that a Judge of the Supreme Court also takes an oath to protect the Constitution. Hence, retired Judges, including the Chief Justice of the Supreme Court have a duty to respect their oath, which means not to act in violation of the Constitution.

It is submitted that either the Constitution be amended so as to enable retired Judges of the Supreme Court to either act or plead or the above statutes be amended to make them conform to Art. 124(7).

* Professor and Head, Deptt. of Legal Studies, University of Madras, Madras-5. Return to Text

1. MC. Chagla, formerly C.J. of the Bombay High Court was a party to the Report of the Law Commission being a member. Shortly after the submission of the Report in 1958, he was appointed as Ambassador to the U.S.A. M.C. Setalvad severely criticised the appointment. See Rao, P.P., Judges as Governors, The Indian Advocate, Vol. XXVII, (1996-97) p. 36. Return to Text
2. Section 23 lays down: "Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (1) of Section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order:". Return to Text
3. It is pertinent to note that under Section 13(4) of the Protection of Human Rights Act, the NHRC is deemed to be a civil court and under Section 22 of the Consumer Protection Act, the National Commission acts with the powers of a civil court. Return to Text
4. Section 12(2), Consumer Protection Rules, 1987. Return to Text
5. Protection of Human Rights Act, 1993, Section 6 and Consumer Protection Rules, Section 12(2). Return to Text
6. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; S.P. Gupta v. Union of India, 1981 Supp SCC 87; Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441. Return to Text