JUDICIAL ACCOUNTABILITY BEYOND RETIREMENT
In our issue of January – March 2010, we had informed our readers about the PIL filed by the Society in the High Court of Delhi on the post-retirement activities of Supreme Court judges that violate the spirit of Article 127(4) of the Constitution, which prohibits retired Supreme Court judges from acting or pleading in any court or before any authority. The petition sought the prohibition of the prevalent practice of retired Supreme Court judges tendering legal opinions, which were produced in various forums of adjudication to influence the outcome of the proceedings. The petition also sought a direction that retired Supreme Court and High Court judges appointed as chairmen/members of statutory commissions and commissions of inquiry should not take up the work of arbitration.
The matter came up before Chief Justice A. P. Shah just before his retirement in February 2010. He directed the Union Government to respond to the PIL. As no response was forthcoming, a bench comprising acting Chief Justice Madan B. Lokur and Justice Mukta Gupta directed the Union Law Ministry on March 10, 2010 to file an affidavit stating its position on the issues raised in the PIL. After many adjournments and admonitions, the Union of India finally filed its counter affidavit on July 20, 2011. Thereafter, some welcome developments took place, and we would like to share them with our readers.
In a PIL regarding the Army Chief’s disputed date of birth, viz. Grenadiers Association (Rohtak Chapter) Versus Union of India, the Supreme Court took exception to the annexing of the legal opinion of a retired Chief Justice of India to the petition and directed its registry to ensure that such opinions were not taken on record. As this direction was in line with the main prayer in our PIL seeking a prohibition of this practice as contrary to the spirit of Article 124 (7) of the Constitution, the Society promptly brought the direction to the notice of the High Court. The High Court thereupon instructed its registry to follow suit and refuse to accept writ petitions in which opinions of retired judges were annexed. Thus, the objective of our main prayer was substantially achieved.
The High Court also directed the Union of India to take a final decision on its proposal to formulate a uniform policy regulating the terms and conditions of service of the Chairpersons/Members of tribunals and statutory authorities, under which they would be barred from taking up arbitration work. The implementation of such a policy would amount to the acceptance of the other prayer made in our PIL by the respondent.
We may also add that the Supreme Court has vide circular number F. No. 89/Judl./2012 dated January 23, 2012 directed all concerned that whenever the opinion of Hon’ble Judges or Senior Advocates is annexed to any petition or interlocutory application, etc., the defect shall be notified at the time of presentation/scrutiny. The importance of the question of law raised by Common cause can be judged by the above direction of the apex court.
The order passed by the bench of Acting Chief Justice A. K. Sikri and Justice R. S. Endlaw in this regard on February 29, 2012 is reproduced below.
-Editor
IN THE HIGH COURT OF DELHI AT NEW DELHI
Writ Petition (Civil) no. 866 of 2010
COMMON CAUSE Vs UNION OF INDIA
ORDER
1. In this petition following two prayers are made by the petitioner: -
a. Hold that henceforth no retired Supreme Court judge can give chamber advice to any party.
b. Hold that henceforth no retired Supreme Court or High Court judge will take up arbitration work while he/she is a Chairperson/Member of any Government appointed constitutional/ statutory body, commission, commission of inquiry, tribunal or appellate body.
2. In so far as prayer “a” is concerned, direction cannot be issued that retired Supreme Court judges would not give chamber advice to any party. However Mr. Prashant Bhushan submits that even if such chamber advice is given, same should not be used in Court proceedings. He refers to order dated 20th January, 2012 passed by Supreme Court in W.P.(C) No. 513/2011 titled Grenadiers Association (Rohtak Chapter) v. UOI wherein the Supreme Court had inter alia directed as under:- “The Registry is directed not to accept writ petition(s) without raising objection in cases where Opinions of retired Judges are annexed to the writ petition. The Registry will carry out this direction in all matters.”
3. Similar directions are given to the Registry of this Court as well for compliance.
4. In so far as prayer “b” is concerned, we find that the respondent had filed affidavit on 19th July, 2011 wherein it is inter alia stated that as far as the issue of taking up arbitration work by the Chairpersons/Members of tribunals and statutory authorities while so functioning is concerned, a proposal to formulate “Uniform Policy” regulating the terms and conditions of service of the Chairpersons/Members of tribunals and statutory authorities is under active consideration in the Department of Legal Affairs. It is further stated that as per the proposed “Uniform Policy”, Chairperson/Members of the tribunals and statutory authorities appointed after coming into force of the proposed “Uniform Policy” will not be allowed to take up Arbitration Work while functioning as Chairperson/Members of the tribunal and statutory authorities. However, no final decision on this proposed “Uniform Policy” has been taken so far.
5. We would like the respondents to take final decision in this behalf within three months.
6. List on 4th July, 2012.
ACTING CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
FEBRUARY 29, 2012
