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) provide:
“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.”
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 again 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 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 scrutinized and corrected by a sitting Supreme Court Judge. This does not seem to be a happy position.
The debate is ripe now on the issue as to whether sitting judges should apply for the posts in tribunals or not .The issue is taking momentum for the reasons –firstly sitting judges may try to influence the selection process and secondly if their tenure is yet to over, they make the department wait for their retirement. Justice R S Sodhi, former Delhi High court judge feels judges applying while still in service denigrate the judicial system .Sharply criticizing this phenomenon Justice Sodhi said ‘this is the crisis of morality within the judiciary .It’s so deep that we have a situation where judges are vying with each other for a post after retirement .Ideally, in my view a sitting judge should never apply. What kind of judicial independence we are talking about if judges start applying like this with the government”
Dr Prem Lata
Dr Prem Lata