“The independence of the judiciary is intrinsically linked to its integrity.” In this context discuss the concerns associated with post-retirement engagements of judges and propose necessary reforms to uphold judicial independence.

Why?

Former Judge Abhijit Gangopadhyay officially joined politics within 48 hours of demitting office.

Approach:  

• Introduce your answer by highlighting the crucial link between judicial independence and integrity, referencing Judge Gangopadhyay’s case as a catalyst for debate.
• In Main body, discuss concerns like perceived bias, erosion of independence, and public trust due to post-retirement engagements and the insufficiency of existing frameworks like the Bangalore Principles. Next outline needed reforms such as a cooling-off period, clearer guidelines, enhanced transparency in appointments, an oversight body, etc.
• Conclude by emphasizing that addressing these concerns and implementing reforms are crucial for maintaining the judiciary as an impartial protector of democracy and the rule of law.

Answer:

The independence of the judiciary is a cornerstone of any democratic society. Judicial integrity fortifies judicial independence by guaranteeing that decisions are rendered with impartiality and adherence to legal principles, free from external influence. The integrity of this institution is challenged when judges engage in post-retirement activities, particularly those that could present conflicts of interest or undermine public confidence. The case of former Judge Abhijit Gangopadhyay, who joined politics shortly after resigning from his judicial position, has reignited this debate.

The Concerns Associated with Post-Retirement Engagements of Judges:

• Perceived Bias and Impartiality: The engagement of retired judges in political or other partisan activities can lead to perceptions of bias, potentially casting doubt on the impartiality of decisions made during their tenure on the bench.
• Erosion of Judicial Independence: Active participation in political roles post-retirement can be seen as compromising the independence of the judiciary, blurring the lines between the judicial and executive or legislative branches of government.
  • Lead to suspicions of under-the-table agreements during their service.
• Influence on Future Judicial Decisions: The prospect of lucrative or prestigious post-retirement positions could unduly influence the decision-making of sitting judges, especially in cases involving the appointing authority.
• Undermining Public Trust: The judiciary’s strength lies in the public’s trust in its fairness and objectivity. Engaging in roles that could benefit from insider judicial knowledge or connections raises ethical questions and potential conflicts of interest, undermining credibility of the judicial system.
  • Former CJI Ranjan Gogoi was nominated to Rajya Sabha post-retirement.
• Reputational Risk for the Judiciary: Individual actions by retired judges can reflect on the judiciary as a whole, risking the institution’s reputation for integrity and neutrality.
  • In 2018, the Centre for Policy Research (CPR) highlighted the case of a judge who ruled in favor of the government on a land acquisition issue and was later appointed to a National Green Tribunal (NGT).
• Impact on Judicial Conduct: The actions of retiring or resigning judges can set precedents that affect the behaviour and expectations of serving judges, potentially influencing their conduct and the perception of the judiciary as a whole.

The Bangalore Principles of Judicial Conduct provide a framework for ethical judicial behavior, emphasizing independence, impartiality, and integrity. However, these guidelines lack enforceability, especially regarding post-retirement conduct, leading to a gap in the regulatory framework that governs the transition of judges into other roles, particularly in politics.

Reforms Needed:

• Mandatory Cooling-off Period: Implementation of this period before judges accept government or political appointments to prevent potential conflicts of interest.
• Clear Guidelines for Post-Retirement Engagements: that delineate permissible activities for retired judges to maintain public confidence in judicial impartiality.
• Enhanced Transparency in Appointment Processes: to post-retirement positions, potentially involving an independent body to mitigate perceptions of bias.
• Strengthening Ethical Guidelines: for judges, with a focus on post-retirement conduct, to reinforce the judiciary’s commitment to independence and integrity.
  • Expanding the Bangalore Principles of Judicial Conduct.
• Creating an Independent Oversight Body: Establishing an independent body tasked with overseeing the implementation of ethical guidelines, including post-retirement activities of judges, to ensure compliance and address violations.
  • A judicial ethics commission to oversee judges’ conduct both during and post-service.
• Promoting a Culture of Self-Restraint: among judges and providing avenues for continued professional development that do not compromise judicial independence.
  • Offering non-political advisory roles or academic positions.
• Periodic Review and Update of Policies: Regularly reviewing and updating policies and guidelines related to judges’ post-retirement activities to adapt to changing societal norms and legal landscapes.

Addressing the concerns associated with post-retirement engagements of judges is essential for preserving the judiciary’s role as an impartial guardian of democracy and the rule of law.

‘+1’ value addition:

• The Bangalore Principles mandate that judges, while free to express and associate like any other citizen, must act in ways that uphold the dignity, impartiality, and independence of the Judiciary.
• In 2024, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice recommended a review of post-retirement assignments for judges and also increasing the retirement age for Supreme Court and High Court judges.
• Justice Deepak Gupta in his minority judgment in Roger Mathews v. South Indian Bank Ltd (2019) expressed the view that there should not be any post-retirement appointments for judges.