Judges should avoid post-retirement assignments, at least for a two year cooling period: BCI
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Judges should avoid post-retirement assignments, at least for a two year cooling period: BCI

Meera Emmanuel

The Bar Council of India (BCI) has expressed its apprehension that the promise of post-retirement jobs has prompted Judges of the Court to issue orders against lawyers’ strikes and boycotts. This is being done on the behest of powerful men in the government, states a press release signed by BCI Chairman, Manan Kumar Mishra.

The release informs that this concern has been shared openly during a recent joint council meeting held with other Bar Councils and Bar Associations.

The meeting openly discussed and opined that some powerful people, sitting in the Government, (which is the largest litigant), have been controlling our Judges by giving them assurances to keep them engaged after their superannuation. And since the Bar is supposed to be the mouthpiece and voice of the people, the Judiciary is being used to throttle and shut its mouth.”

This agenda is also apparent from the manner in which some of the Judges humiliate lawyers in Courtrooms, as opined in the release.

The Bar in its joint meeting unanimously felt that some of the Judges feel pleasure in humiliating the Lawyers and passing uncalled-for, unnecessary remarks against members or leaders of the Bar. This has become a fashion nowadays…

… If one carefully examines these Judgments [against lawyers’ strikes and boycotts], he will find that under the facts of those cases, there was absolutely no occasion and no reason for passing any stigma against the institutions of Advocates. The meeting realized and opined that the purpose behind passing such remarks or issuing such anti—Bar directions, was something else. This was the opinion of almost all the representatives coming from all parts of the country.

An obscure reference is made to a specific “Judge of the Supreme Court”, who passed such orders with the sole intent to shut the mouth of the Bar. The release goes on to state that the Judge was also given a lucrative post-retirement assignment.

How the people of this country can have faith in this type of Judges? [sic]” asks the BCI. It notes,

The Hon’ble Judge had gone to the extent of issuing directions to the Law Commission to suggest amendments in Advocates’ Act for demolishing the democratic structure of Bar bodies. And the Law Commission, as expected, made its suggestions destroying the independence of the Bar. (Though due to strong protest by the Lawyers, the Government did not accept the recommendations)…

…  The feeling of Bar was/ is that such impractical, utopian orders are passed at the behest of some powerful people so that they could do anything, could make even anti-people or anti-lawyer draconian Laws; and Bar could be compelled to be a silent spectator. The opinion of Bar Leaders in the joint meeting is fortified with the fact that the said Judge got a very lucrative assignment within a month of his retirement from the Supreme Court.”

The BCI clarifies midway that it does not ordinarily endorse strikes, boycotts, abstentions etc.

Rather whenever we have found such strikes etc. to be unjustified, illegal or uncalled-for, we have taken stern and strong actions against erring Advocates.

Nevertheless, such a crackdown on the democratic structure of the Bar has been cited as responsible for a recent rebellion of sorts among lawyers of the Odisha High Court against Supreme Court directions to halt their strike.

But one should see the result [of Courts clamping down on lawyers’ strikes]!”, the BCI notes,

“For the first time in the history of the nation, the effigies of our Chief Justice of India has been burnt by Odisha Lawyers yesterday. These are matters of serious concern. Before blaming or controlling the Bar, our Judges will have to introspect themselves. They forget that they were also the members of the same Institution before their elevation and they are to join this Institution again after their retirement.

The release then issues the following ominous warning against the fallout likely if the Court continues on its current path.

Today, the lawyers of Odisha High Court Bar have burnt the effigies, tomorrow the Lawyers of the entire country will start doing it and the day is not far when the general public, common-men will toe the line. Time has come when we shall have to be cautious and will have to save the Institution. Responsibility lies on Bar and Bench both.

While lamenting that the Court has been ignoring cases which affect the common man, the BCI release also criticises the reckless manner in which the Court has been dealing with sensational issues and PILs, by reason of which “we are made a laughing stock.”

Major time of courts are wasted on media-popular matters with which 99% of citizen of our country have no concern at all. It appears that most of our Judges are far—far away from the ground realities and the public opinion over the social issues.”

The release also makes a vague statement against recent judgments that have upset erstwhile norms. Given that the in the recent weeks the Court has upturned several pre-existing norms, from decriminalising homosexuality and adultery to allowing the entry of women into the Sabarimala temple, it is difficult to gauge which judgment has offended the BCI. The release simply offers its disapproval in the following terms,

Orders are being passed, Laws are being laid down against all sorts of set social and religious values and norms.

However, the core issue that remains, as per the BCI, is the availability of post-retirement jobs for judges. The proposed solution to counter its apprehensions is that judges opt to avoid post-retirement assignments, at least for a two-year cooling period.

Such post- retirement assignments, for good or no reason, put a question mark on the fair discharge of judicial functions by the Judge in question during the concluding part of his tenure. This is a very grey area in which Bar expects that retiring Judges should not accept any appointments after retirement, at least for a cooling period of two years from the date of their retirement.

In this regard, the BCI has hailed the lead taken by former Judge of the Supreme Court, Justice Jasti Chelameswar.

In stark contrast to the critical stance taken by the BCI the last time it issued a press release involving Justice Chelameswar, yesterday’s statement calls for other judges to emulate the example set by Justice Chelameswar and later, Justice Kurian Joseph in declaring that they would not take up any post-retirement jobs.

The Bar Council of India feels that in the present scenario obtaining in the Country, the lead taken by Hon’ble Mr. Justice Jasti Chelameswar, and Hon’ble Mr. Justice Kurien Joseph is a very healthy and welcome step, which would go a long way in promoting a healthy democracy in the Country.

The BCI statement ends on a hopeful note that outgoing Chief Justice Dipak Misra would also refrain from taking up any post-retirement jobs.

“Hon’ble Mr. Justice Dipak Misra, CJI has a long and credible history in fighting for democratic values and judicial independence. The legal fraternity has great expectations from the outgoing CJI. We hope that his crusade for the independence of the judiciary, both by way of judicial pronouncements and by deeds, would open up new vistas.

We earnestly hope and believe that Hon’ble Mr. Justice Dipak Misra would put new life and meaning to the initiative taken by Hon’ble Mr. Justice Jasti Chelameswar in not taking any post-retirement assignment from the Government. And he would be doing a great service to the democracy and judiciary by doing so.”

Read Full BCI Statement:

BCI-Press-Release-dated-29.09.2018.pdf
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