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Weight of Opinion

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Mohit Abraham,

First published in http://www.mylaw.net, September 24, 2011

http://mylaw.net/Article/Weight_of_opinion/

The practice of retired judges of the Supreme Court giving legal advice to litigants has been challenged in a Public Interest Litigation filed by Common Cause (“the PIL”) before the Delhi High Court for being in violation of Article 124(7) of the Constitution. It is available here.

The PIL has sought two directions from the High Court, viz., (a) that no retired Supreme Court judge can give chamber advice, that is, the issuance of legal opinions, to any party; and (b) that no retired Supreme Court judge will take up arbitration work while he or she is the Chairperson or Member of any government-appointed constitutional or statutory body, commission, commission of inquiry, tribunal, or appellate body.

The Division Bench hearing the matter appeared to be more concerned over the latter issue relating to arbitration work undertaken by retired judges who hold official positions in tribunals or quasi-judicial bodies. While that is a practice that should certainly not be permitted, in this article, I will focus on the former issue, that is, the practice of retired judges issuing legal opinions. I will also generally address the issue of legal work undertaken by retired judges.

Article 124(7) states that “No person who has held office as judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India”The analogous provision for High Court judges is in Article 220 of the Constitution which prohibits a retired High Court judge from pleading or acting in any court or before any authority in India except the Supreme Court and the other High Courts.

The question which arises is whether issuing legal opinions would fall within the phrase “plead or act in any court or before any authority”. Common Cause argues that it would.

Legally speaking

The issue is not a new one and has been addressed by some High Courts before. In the case of Manubhai Paragji Vashi v. Bar Council of India and Others, (1990) 92 BOMLR 470the Bombay High Court while interpreting Article 220 has held that on a plain reading of the said Article, “[t]here is no bar even implied on chamber work of practice and/or giving opinions and/or being consulted in legal matters and/or arbitration work.”

Again, in Ananga Udaya Singh Deo v. Ranga Nath Mishra and Others, AIR 2001 Ori 24, while dealing with the issue of whether a retired judge of the Supreme Court could offer his candidature for the membership of Parliament, the High Court observed that “A bare reading of Article 124(7) would make it clear that what was intended by the Constitution-makers while prescribing the bar in this Article was that no Judge of the Supreme Court should plead or act in any Court or before any authority within the territory of India…That means, the words “plead or act” refers to practice before any authority”.

The Court then when on to hold that that words “plead or act” can only be interpreted to be a restriction for practice before any authority and it does not refer to the functioning or performance of a Member of the House of People or Council of States, that is, the Parliament.

In Robinson v. State of Kerala2003 (3) KLT 1052, the Kerala High Court had occasion to examine the issue of retired judges accepting government enquiry commission duties and concluded that “[a] perusal of the provision shows that a person who has been a permanent Judge of a High Court cannot act or appear before any Court or authority other than the Honourable Supreme Court and other High Courts. However, acceptance of the Government’s request to hold an enquiry does not amount to practising or acting before an authority subordinate to the High Court”.

A statute which defines the phrase “To act” is the Advocates Act, 1961. Section 30 states that a Senior Advocate shall not act in any court, tribunal, person, or authority. The Explanation to this section specifies what “To act” means and states as follows:

“Explanation: “To act” means to file an appearance or any pleading or application in any court or tribunal or before any person or other authority mentioned in Section 30 of the Act, or to do any act other than pleading required or authorised by law to be done by a party in such Court or Tribunal or before any person or other authorities mentioned in the said Section either in person or by his recognised agent or by any advocate or an attorney on his behalf.”

The aforesaid judicial pronouncements and statutory definitions clearly seem to indicate that “plead or act in any court or before any authority” necessarily means the act of arguing, pleading, and appearing before the court and includes filing, drafting, and settling of petitions and other documents intended to be presented to a court, tribunal, or other authority. The plain meaning of Article 124(7) and Article 220 leaves no doubt that retired judges are fully within their rights to issue legal opinions and act as arbitrators. Common Cause however, argues that the Constitution is a living document and that a broad and expansive interpretation of the Constitution must always be resorted to. Accordingly, it argues, that spirit of both the Articles would require retired judges to eschew such practices.

Leaving aside the finer points of the law and legal interpretation, a larger question which arises is whether or not it is ethical, proper, and practical for retired judges to issue legal opinions to private clients.

Are legal opinions issued by retired judges misused?

Using the Right to Information Act, Common Cause has been able to show that many Public Sector Enterprises have sought legal opinions from retired Supreme Court judges. It argues that these opinions are used to overawe agencies and courts and influence their judgments or decisions. Common Cause specifically states that this practice must be put to an end to (a) preserve the dignity of the Supreme Court; (b) avoid embarassment to the court or tribunal; and (c) to prevent allurement by post-retirement benefits so as to preserve the independence of the judiciary.

During the course of my practice, I have come across many instances where legal opinions are sought from retired judges and produced in courts. Undoubtedly, the party who sought the the opinion feels that the opinion is entitled to receive weighty consideration from a court. Is this, however, necessarily wrong? I think notbecause our courts and other institutions are made of stronger stuff. It is a disservice to our serving judges to assume that they would be unduly influenced by any such opinion. The judges, particularly in the higher judiciary, swear an oath to uphold the Constitution and the laws of the country. If we have reached a stage where we feel that our judges are going to be influenced and embarassed by a legal opinion of a retired judge, then the issue is far more serious. Justice Scalia who refused to recuse himself from a case involving Dick Cheney, with whom he had at the time, hunted and dined, said in his defense, “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined”.

While I certainly thought Justice Scalia ought to have recused himself from that matter, his quote is very apt in the context of the argument that Indian judges and authorities would be so easily swayed by the opinion of a retired Supreme Court judge, which has absolutely no binding value and is exactly what it is, an opinion.

Judges and ethics

While the Advocates Act, 1961 and the Bar Council of India Rules regulate the ethical behaviour of lawyers, there are no such binding regulations or guidelines with regard to judges in India. Many other countries, for example, New Zealand, Australia, and many states in the United States, have detailed guidelines about ethical behaviour of judges, including post-retirement conduct. In India, the proposedJudges (Inquiry) Bill had included a provision under which the National Judicial Council would frame a “code of ethics” for judges. The recent Judicial Standards and Accountability Bill, 2010 also lays down certain standards to be followed by the judiciary and also refers to the Restatement of Values of Judicial Life (Code of Conduct) adopted in the Chief Justices Conference of 1999 – but these do not contain provisions pertaining to post-retirement conduct.

Perhaps the more effective manner of dealing with the conduct of judges after retirement is through such a code or statute. While I do not see the harm in a judge issuing legal opinions, there are other serious issues which may arise, for example, a judge accepting a job in a private company immediately upon retirement. The case of a former Chief Justice of India who had taken up employment with a company in Calcutta upon retirement had become a subject of heated debate in the Lok Sabha. A judge receiving the ticket to contest Lok Sabha elections of a political party immediately upon retirement may also erode the confidence of the people in the judiciary and needs to be considered by a competent body. These are far more serious than the issue of a retired judge advising a client or issuing a legal opinion.

Upon retirement, many eminent judges have played a remarkable role by serving on government bodies and commissions, or purely in their role as public intellectuals or academics. The fact, however, is that not all retired judges can have a similarly dynamic professional life after retirement.

It is in this light that I feel that prohibiting retired judges from issuing legal opinions or participating in arbitrations is unfair. One of the reasons I have already highlighted is that it is unfair to the sitting judges to imagine that they would be overawed by the opinion of a retired Supreme Court judge. The other reason is that it places a harsh restriction on a retired judge. The Parliamentary debates on Article 220 throws interesting light on the issue. Prior to the Constitution (Seventh Amendment) Act, 1956, there was a complete ban on retired High Court judges from practicing before any court. The sense conveyed through the debates was that a complete bar on practice by permanent judges of the High Court could be put in place only if the concerned judge was compensated adequately in pecuniary terms by making the pension equivalent to the salary last drawn, and increasing the retirement age to sixty-five years. It was further reasoned that appointment to the Bench of the High Court was brought about at a relatively late age and to then deprive a judge completely of his right to practice in any High Court, would act as a disincentive for bringing the best talent to the judiciary. These debates seems to indicate that a total ban on practice would have been acceptable to the legislatures provided it was duly compensated (for a further discussion on the relevant debates, SeeP.C. Jain and Others v. Union of India and Others2009 Indlaw DEL 494).

A retired Supreme Court judge cannot practice in any court or tribunal. If they do not receive government appointments after retirement, they would have to rely soley on the pension which the government provides. That is not enough to sustain a comfortable retired life which comes close to the life of a sitting judge. Total prohibition from professional activities like participating as arbitrators or issuing legal opinions would be unduly harsh. What is more, it would operate as a disincentive to anyone who contemplates joining the judiciary. In todays time, with a higher life expectancy, the age of sixty-five (when Supreme Court judges must retire) is when an individual would be expected to be at the peak of his intellectual capabilities. To deny a retired Supreme Court judge his right to livelihood would be quite unfair. What is more, I have faith that our institutions are strong enough to not blindly follow the legal opinion of a retired Supreme Court judge.

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