We Can't Have Independent Judiciary If Judges Look For Post-Retirement Appointments : Ex-SC Judge Deepak Gupta

On Saturday, while speaking on the issue of building a transparent and accountable collegium, at the Seminar on Judicial Appointments and Reforms, organised by the Campaign for Judicial Accountability and Reforms (CJAR), Justice Deepak Gupta, former Judge of the Supreme Court, expressed his views on how judicial independence is compromised by post-retirement benefits. He stated -

"There should not be any post-retirement benefits.We cannot have an independent judiciary with such benefits. If judges on the verge of retirement throng corridors of power to look for after-retirement crumbs then what justice can be expected".

Suggesting ways to improve the collegium system, Justice Gupta highlighted the importance of independent judges, who have the spine to stand up for themselves and to protect the Constitution of India. He also pitched the significance of diversity of opinion in constitutional interpretation at the highest court of the country. According to him -

“...if the Supreme Court was packed with liberal judges that would also be a very sad day. It has to be a blend of all.”

He pointed out two issues, which he thought needed to be addressed in order to strengthen the functioning of the collegium. Firstly, a common retirement age for judges of all Constitutional courts.

“One reason is the unholy hold that some of the judges of the Supreme Court exercises on the senior judges of the High Court will come to an end…Another aspect is that you have judges who are administratively more capable, they can be kept in the High Courts and those who are intellectually inclined can come to the Supreme Court…”, Justice Gupta said.

Secondly, to do away with post retirement benefits eventually. He emphasises on appointing right judges at the High Court level as most of the judges of the Supreme Court are appointed from the High Courts.

“If you do not appoint the right judges in the High Courts, how will you get the better judges in the Supreme Court?”

It was pointed out that the now-a-days, the Chief Justices of High Court hold office for 3 or 4 months, which is not enough time to be able to evaluate the capabilities of the local judges of the respective High Courts. Apart from that, more often than not the three senior most judges of the High Court, who are members of the Collegium are outsiders with short tenures. In this backdrop, he suggested that the strength of the High Court collegium can vary depending on the strength of the respective High Courts. Justice Gupta was of the opinion that it would be beneficial to have at least one judge in the collegium who would know the local judges of their High Court.

Another suggestion put forward by the retired judge was that the response time of the State be stipulated, beyond which the file would automatically go before the Investigation agencies seeking their report. He reckoned that the inputs regarding the standing of a candidate can be taken from all stakeholders, including the Bar. However, he was abundantly clear, in that case, the Bar needs to be independent.

Justice Gupta flagged a serious issue of discrimination -

“When it comes to the Supreme Court...small High Courts are ignored in the Supreme Court because there is no one from these High Courts that are sitting in the Supreme Court.”

He stated that one way to ensure that recommendations from smaller courts are not ignored, is to take up the files as they come. Otherwise, he expressed concern that the seniority of the judges would be affected.

“Names should always be taken up in a chronological manner. Why should there be discrimination between different High Courts at the Supreme Court level? Because what the Govt. is doing, the collegium is also doing.”

Justice Gupta disclosed how religion of the candidate influences the time frame for consideration of their names by the Government. If it takes 100 days for a recommendation to be approved by the Government; it takes 266 days if the candidate is Christian and more than 350 days if they are Muslim.

“I have come to know, but not verified though, that it normally takes 100 days for a recommendation to be approved by the Govt. If it is a Christian it takes 266 days, if it is a Muslim it takes more than 350 days.”

He expressed concern -

“If these figures are correct and I believe them to be correct, it is a very dangerous trend. So, you are making sure that they never become Senior Judges; CJs and never reach the Supreme Court. So, this should be in the public domain, so that we can ask questions.”

Justice Gupta emphasised that time-lines should be set out and adhered to. He added -

“The Supreme Court must crack the whip if it needs to, if reiterations are not accepted by the Govt, they have to be forced to accept it. That is enforcing rule of law, otherwise we are headed for anarchy.”

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