WP 866 of 2010
Post-Retirement Activities of Former Supreme Court Judges

Summary :

Common Cause filed a writ petition in the Delhi High Court on February 10, 2010, highlighting how Article 124(7) of the Constitution of India is being violated in both letter and spirit because of certain post-retirement activities of the former judges of the Supreme Court of India. This provision forbids a person who has held office as a Judge of the Supreme Court from pleading or acting in any court or before any authority. The purpose of this salutary provision has been defeated and it has been rendered nugatory because of an extremely narrow interpretation given to the expression ‘pleading or acting’. It has led to a situation where retired Chief Justices and Judges of the Supreme Court of India tender legal opinions for hefty fees and their opinions are produced in various forums of adjudication to sway their judgment.  

With a view to safeguarding the dignity and reputation of the high Constitutional office of Judge of the Supreme Court, the petition sought a declaration from the High Court that the act of giving a written advice to be tendered in a court of law also comes within the mischief of the Article 124(7).The petition also showed how retired judges holding Constitutional/statutory posts as Chairpersons/Members of various Commissions take up arbitration work in violation of established legal and ethical norms. Such practice does a disservice to both the high offices they have held and the posts or bodies to which they have been appointed. Therefore, the petition also sought a declaration that no retired judge of the Supreme Court or a High Court will take up arbitration work while he is holding a Constitutional/statutory post, or is Chairperson/Member of any government appointed Commission or Tribunal.

The petition had been supported by factual information obtained by Common Cause from the Government of India and a few central public sector enterprises under the Right to Information Act. According to the available information, which is by no means comprehensive, but can be considered as representative, Justice R C Lahoti, Former Chief Justice of India, received Rs 3,25,000 from National Thermal Power Corporation Ltd for a legal opinion in 2006-07. He also received Rs 3,25,000 from Rashtriya Ispat Nigam Ltd for a legal opinion during the same year. Justice G B Patnaik, retired Supreme Court Judge, received a total amount of Rs 12,38,120 from Power Grid Corporation Ltd for six legal opinions during the period from 2006-07 to 2008-09. He also received a total amount of Rs 1,75,000 from Indian Renewable Energy Development Agency Ltd for two legal opinions during the years 2006-07 and 2007-08.In response to an RTI query, the Ministry of Law & Justice has stated that there is no written policy in respect of allowing retired Supreme Court and High Court judges to take up arbitration work while heading a Commission of Inquiry constituted by the Union Government and that there are no conditions attached as such to the grant of such permission. The names of the judges who were nominated during the years 2006-07 to 2008-09 in arbitration work include Justice A S Anand, former Chief Justice of India and Chairperson, National Human Rights Commission, Justice I Venkatanarayanan, Member (Part time) Law Commission of India, and Justice A R Lakshmanan, Chairman, Law Commission of India. During the pendency of this petition the Society secured some significant outcomes. The High Court had instructed its registry to refuse to accept writ petitions in which opinions of retired judges are annexed. This was in line with our prayer for the prohibition of this practice, which is contrary to the spirit of Article 124 (7) of the Constitution.  As regards our prayer for debarring chairpersons and members of various tribunals from taking up arbitration work during their term of office, the Court was informed that a Bill to prohibit members of a tribunal or a statutory body from acting as arbitrator had been introduced in the Rajya Sabha and referred for consideration by the Standing Committee. 

The said Bill (Tribunals, Appellate Tribunals and other Authorities (Conditions of Service) Bill, 2014), prohibiting members of a tribunal/statutory body from acting as arbitrator, stands referred for consideration by the Standing Committee. Judgment had been reserved on the matter on February 25, 2015. The petition was disposed on December 11, 2015 with a direction to the UOI to give special attention to the issue and to ensure that appropriate legislation was made at the earliest.

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WP 866 of 2010