Misguided Ideas Can Harm the Justice System


Supreme Court justices perform a vital service to the nation – they have the right to choose legal and ethical avenues to occupy themselves after retirement

Supreme Court justices perform a vital service to the nation – they have the right to choose legal and ethical avenues to occupy themselves after retirement

Over the past two decades, attention to the role of the judiciary has increased almost exponentially. Rarely does a day go by without at least a few front-page stories in our national dailies devoted to what happened before the constitutional courts. Even as I write this, the cameras are slowly turning to the Supreme Court to see how the Maharashtra imbroglio will unfold. It’s no surprise, then, that events at court elicit opinions and views, including many from those who ply their trade within these hallowed portals (including this writer). Most of these pieces are devoted to specific judgments and fleeting events, but very often we see one that deals with institutional issues – larger malaises that need to be addressed – and then we view those suggestions through a lens. wider.

One of them is Sriram Panchu’s article “A wish list for reform in India’s high judiciary” (published in The Hindu June 22, 2022). There are, of course, some good points (even if I should ignore the rumor he refers to in the first paragraph) – that the retirement age of all judges should be equal and that there is no reason to believe that judges lose their abilities in their early 60s. These issues are not new, however, having been raised 50 years ago by the Law Commission of India in its 58th Report and then again in the Constitution (114th Amendment) Bill 2010, which is then lapsed.

The most critical role

Where I differ from Mr. Panchu is in his belief that judges, once retired, should have a sense of public service and, to make matters worse, they should be supervised for appointments and special assignments. I need not emphasize that Supreme Court Justices are solemn constitutional authorities who perform probably the most critical role of the Republic. Many of them have traded storied and lucrative careers to make do with a tiny fraction of their annual income, overwhelming workloads and almost non-existent social lives. From those glorified confines where they are not supposed to react to criticism, supposition and even invective, we expect these women and men to deliver an impeccable quality of justice, seemingly unaffected by sleepless nights, overloaded lists and multiple administrative tasks. .

I do not believe that these citizens of our country who have sacrificed so much need lessons in “public service”. After devoting two twenty years of their lives to precisely this, they are allowed – even allowed – to choose legal and ethical ways to keep themselves busy. Arbitration, which reduces the burdens of a creaky trial court system, only furthers the interests of the public and the parties involved, and even if it hasn’t, it’s unclear why a judge retired should be visited by a foreign principle of offering charity even after retiring.

Hire senior lawyers

In fact, the claim that judges make “fortunes” through post-retirement arbitrations and that a minority of them devote themselves to public service is misguided. Perhaps it would be more appropriate to turn the proverbial mirror to the very tribe to which we both belong – the senior lawyers. It’s no secret that the upper echelons of this club (which unfortunately I’m not a part of) are some of the highest paid lawyers in the world, easily earning millions of dollars a month.

If need be, it is to them and others of their ilk that appeals to public service must be addressed. Surely the decades of amassing wealth could now give way to the “public service” we demand of others? It may be time for a retirement age for solicitors – they can spend their final years giving back to the profession by teaching at universities, helping the Law Commission or even writing thoughtful articles .

Choosing the Chief Justice of India

Now, Mr. Panchu’s next suggestion: that the successor to the Chief Justice of India should be “the most reputable Chief Justice of a High Court” at the time. Forgetting for a moment that most of the other Supreme Court justices would have been Chief Justices of the High Courts, skipping them all and settling on someone completely new to the Supreme Court is absurd in the extreme. Moreover, who decides on the “reputation” of a Chief Justice? We have had four substantial Supreme Court rulings in 1981, 1993, 1998 and 2015 which reiterated the independence of the judiciary and attempted to cement it with a collegiate system – should we then go back to the dark but unforgettable days of the 1970s when not one but two replacements spoiled the appointment of India’s Chief Justice by falling back on a subjective idea of ​​“reputation”?

Regarding the appointment of the most senior justice to the highest office, it is well known that this rule came into effect due to the unanimous position of all the justices of the Supreme Court in 1951 threatening to resign if the most former (Madras’ own Patanjali Sastri) was to be overlooked in favor of Bombay’s MC Chagla as Jawaharlal Nehru wanted. This intervention has become practical and, with the exception of the two overruns and a medical exception, it has never been waived for 72 years.

I share Mr. Panchu’s constant concern for the fate of our judiciary, and I fully agree that Chief Justices should not go their “free way”, as he so eloquently puts it. But much of this is based on individual personality – few would dispute the fact that the past 14 months under Chief Justice NV Ramana have shown that a truly collegial approach is possible, and no question has was raised on the allocation of lists, such as those that tormented his predecessors. It may be time to acta, non verba (action, not words).

Gopal Sankaranarayanan is a Senior Advocate at the Supreme Court of India


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