Can't risk annoying the Bar: CJI Surya Kant on why plan to bring back retired judges failed

Chief Justice of India (CJI) Surya Kant on Thursday said that opposition from bar associations had stalled the Supreme Court's attempt to bring retired judges back to High Courts as ad hoc judges.

"We while on a bench headed by the then CJI Bobde virtually revived the practice of appointing ad hoc judges from among retired judges. We thought we would bring this practice into vogue. But opposition from bar associations prevented the initiative from taking off...they started passing resolutions...no chief justice can risk annoying the Bar," the CJI said.

Article 224A of the Constitution empowers a Chief Justice of a High Court to request a retired judge from that or any other High Court to act as an ad hoc judge.

The remarks came from a Bench of CJI Kant and Justices Joymalya Bagchi and V Mohana, while hearing a dispute over the seniority of judicial officers in Rajasthan.

Senior Advocate PS Patwalia argued that direct recruits had been placed below intervening appointees despite delays beyond their control.

From there, the discussion widened to pensions and the judicial experience lost when retired judges cannot return to service.

Justice Bagchi said that the failed initiative had left retired judges in the lurch.

"The unfortunate part was that the judges who retired and had offered their services were not taking private assignments, with a legitimate expectation that they would be appointed," he said.

He also recalled meeting a woman judge in the United States who had tried a 9/11 case.

"She was, you will not believe, more than 80 years old. She had so much expertise in trying these terror cases that the Chief Justice had requested her to render service. The value of judicial resources is very precious."

The CJI then recounted meeting a judicial officer who had resigned after several years and returned to practice. Under the new pension rules, the officer told him, he expected no more than ₹25,000 a month on retirement.

"How do you think I am going to survive? the officer asked," the CJI said.

"Pension, Your Lordships must look into, at least for judicial officers," Patwalia urged.

Justice Bagchi tied the issue to judicial independence.

"That will be part of the independence of the judiciary, to keep them independent."

When the Court took up the next matter, Senior Advocate Menaka Guruswamy joined the conversation.

"I am trying to become a lip reader, trying to pay attention to what the Court is saying," she said.

"We were not talking about your matter," Justice Bagchi replied.

Guruswamy then said,

"I know. After what Justice Bagchi said, when Justice Sandra Day O'Connor retired from the American Supreme Court, she would come back and sit on specific matters. Sometimes that expertise is needed. That wisdom is needed."

Justice Bagchi pointed to a structural difference.

"Unfortunately or fortunately, we have a bureaucratic judiciary. We have a very strict hierarchy," he said, adding that the US federal system has no regular elevations through the courts.

Guruswamy recalled that when she taught at NYU Law School, Justice John Paul Stevens came to address her class.

"He came by subway. We were all expecting a car and a cavalcade. He just walked in."

Justice Bagchi shared a similar account. During a counterterrorism programme attended by eight Indian judges, he had requested an audience with Justice Stevens, who arrived with an umbrella, having taken the tube because it was raining.

"Even in the German Constitutional Court, a woman judge used to cycle to work," he added.

Guruswamy noted that the US Supreme Court hears only "16-20 cases a year", and so "the burden is less."

Justice Bagchi said that State courts in the US have overflowing dockets, while the federal courts are placed differently.

"We give too much importance to adjudicatory outcomes. In America, you would hardly get a case that goes all the way to adjudication," he said.

[Read live account of hearing]