Adish C Aggarwala writes to Prime Minister Narendra Modi, to bring amendments in laws

New Delhi, April 24: Supreme Court Bar Association (SCBA) President Dr. Adish C Aggarwala has written to Prime Minister Narendra Modi, requesting several amendments in the law, including a compulsory two-year “cooling-off” period for judges to join politics, saying that he had raised the requests to “curb the brooding threat to the independence of the judiciary”.

Dr. Adish Aggarwala, in the copy of the letter addressed to the Chief Justice of India Dr. D.Y. Chandrachud, also suggested that only sitting judges or advocates be appointed to head the various tribunals instead of asking retired judges to anoint the posts.

Significantly, Mr Aggarwala referred to various earlier instances of judges entering the political arena either before becoming judges or after demitting office, thus compromising the integrity and propriety attached to their august constitutional posts.

Unfortunately, former judges venturing into the political arena has been seen on multiple occasions in India. Earlier Mr. Baharul Islam, who was Congress Member of Rajya Sabha, became a Judge of the Guwahati High Court. After retirement as Chief Justice of Guwahati High Court, he became a Judge of the Supreme Court. Finally he resigned as Judge of Supreme Court and then again became a Congress Member of Rajya Sabha.

Also, Mr. Justice Ranganath Misra who was the Chief Justice of India from year 1990 to year 1991 joined the Congress Party and was made a Rajya Sabha member from Odisha, after serving as Chairperson of National Human Rights Commission,” the letter said.

Dr. Aggarwala also recalled that in March 2020, the NDA government had nominated former Chief Justice of India Mr. Justice Ranjan Gogoi to the Rajya Sabha but he did not join BJP and instead chose to remain an independent Member of Parliament.

“Recently Mr. Justice Abhijit Gangopadhyay resigned as Judge of Calcutta High Court and within a few days, he joined the BJP and now he is contesting from Tamluk Parliamentary constituency”.

In light of similar situations being encountered, the time is ripe for your government to consider introducing a law to debar former judges from engaging in political activities for at least two years immediately after demitting office as a cooling off period. This will help prioritize public trust and confidence in the judiciary over personal interests and ambitions of the judges.

It is worthy to note that of the 21 judges who have retired from the Supreme Court from January 2008 to 2011, 18 judges got assignments in different Commissions and Tribunals,” Dr. Aggarwala stated.

Dr. Aggarwala, who also has been Vice-Chairman of Bar Council of India, remarked that a judge who accepts post offered by the Government, immediately upon retirement, is seen to have fallen for the bait, and is criticized for having placed his personal interest over and above that of the cause of justice.

“The relevant Acts must be amended to provide for Tribunals and Commissions to be manned by either sitting Judges of Supreme Court/High Courts/District Courts or by eminent lawyers,” the SCBA President said.

Further, he said the services of judges should be profitably used in Courts for longer tenures by raising the retirement age of Supreme Court Judges from 65 years to 68 years and that of High Court Judges from 62 years to 65 years. The retirement age of judges in the district courts may be raised from 60 years to 63 years.

“The above measures can help in tackling the rapidly rising backlog of cases. By increase of retirement age, the same judge will continue on the Bench for three more years and will contribute to the system for a longer term, while the quantum of pension remains the same. This will reduce the judiciary’s expenditure burden on the taxpayers by at least twenty percent,” the letter added.

It is for the same reason that the Government must insulate the judiciary from criticism and protect the confidence reposed by the people in our Courts. The Government may consider introducing suitable amendments in the Constitution and the respective statutes for (a) having Tribunals and Commissions presided over (including membership) by sitting judges or by members recruited from the Bar, instead of appointing retired judges to those posts, (b) disallowing former judges from engaging in political activities for at least two years immediately after demitting office, (c) raising retirement age of judges by three years, and (d) increasing the strength of Supreme Court and High Court Judges.

“I wish to point out that while the Government of India is, under your visionary leadership, committed to strengthening the Judiciary and to preserve its dignity, there are certain vested groups who are out to sully its image in the eyes of the public. On 26.03.2024, I along with other advocates including Senior Advocate Mr. Harish Salve and Bar Council of India Chairman Mr. Manan Kumar Mishra, had written to the Hon’ble Chief Justice of India raising concerns about the actions of a “specific interest group” which are tainting the image of the judiciary. It was apprised, through the said letter, that the chorus by these disgruntled elements gets louder when cases involving corruption by political figures are taken up. We requested the Hon’ble Chief Justice of India to take proactive measures to safeguard the reputation of the judiciary and also urged the legal fraternity to stand united to support the judiciary – one of the strongest pillars of Indian democracy,” said Dr. Aggarwala in the letter.

“I may also point out that on 24.03.2024, Mr. Kapil Sibal, Senior Advocate and former Union Minister for Law & Justice stated in open Court in the Supreme Court that “When the history of this Court will be written, this period will not be golden.” This comment was made by Mr. Sibal before a three-Judge Bench during a hearing in which the Supreme Court declined to grant bail (on jurisdiction issue) to BRS leader K. Kavitha, who had been arrested by ED in the Delhi excise policy case. It is unfortunate that a Senior Advocate of his repute and standing should pass such remarks when he failed to secure favourable orders from the Court. Passing of such comments is not only contemptuous but also against professional ethics. It is the duty of every advocate to respect courts and to refrain from making statements that may scandalize the courts. I may point out that there are many seasoned senior lawyers who have the support of, or who represent, Opposition leaders. These senior lawyers, for instance, Mr. Salman Khurshid and Mr. Ashwani Kumar (both served as Union Minister for Law & Justice), Mr. Abhishek Manu Singhvi, Ex.MP, Mr. Vivek Tankha, MP and Mr. P. Wilson, MP, Mr. Huzefa Ahmadi, Mr. Devadatt Kamat, Mr. C.U. Singh, Mr. Harin Raval, and Mr. Ejaz Maqbool argue their cases on merits and do not inveigh against the judicial system only because the Court is not inclined to grant relief to their clients”, said Dr. Aggarwala in the letter.

“It may not be out of place to recall that I had written a letter to the Hon’ble Chief Justice of India for Suo motu Review of the Electoral Bonds’ verdict. I underscored the procedural error that the Court had not framed ‘substantial questions of law’ for determination, as required by Article 145 (3) of the Constitution of India and Chapter IV (Rule/Para IV) of Handbook on Practice and Procedure and Office Procedure of Supreme Court of India. As an officer of the Court and President of Supreme Court Bar Association, I highlighted the error of (1) non-framing of substantial questions of law and (2) not providing opportunity to the donors of being heard in accordance with the principles of natural justice, as the said Electoral Scheme contemplated non-disclosure of identity of the donors. In fact, this aspect should have been brought to light by Mr. Prashant Bhushan, Advocate-on-Record as it is the duty of Advocates-on-Record to point out that substantial questions of law are required to be framed under the law. However, when, during the hearing on 18.03.2024, the Hon’ble Chief Justice of India declined to go into the issue that I had highlighted, I accepted the said decision with utmost respect to the Court because preservation of the dignity of the Court has to be our predominant interest” added Dr. Aggarwala in the letter.