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To eliminate bias

The concept of Office of Profit must be extended to judges on the verge of retirement, says ASHIT KUMAR SRIVASTAVA.


The very concept of ‘Office of Profit’ had come into existence to pacify insecurities within the hearts of the Parliament and the King and arose mostly because of the glaring distrust which the two institutions had in each other.

Therefore, parliament restrained its members from having any employment under the King. The King in the new realm of political science can be regarded as the Executive; to build further upon this thesis, it is an undeniable fact that ‘Office of profit’ is a colonial gift to the Indian subcontinent by its erstwhile masters. Therefore, the Constituent Assembly was happily comforted in continuing the practice of an alien country in the nation.

However, as the concept grew, its purpose got diverse. The concept not only was a means of segregating the King from the Parliament, but its stature grew with political dynamism. Now the concept is a well accepted indicator of ‘Separation of Power’, as the principle is used to keep the legislative away from the executive.

Thus, the principle of ‘Office of Profit’ is a useful tool for segregating the two elements of the State from each other. There is a plethora of judgments to augment this grounding of separation of power between the executive and the legislative (Umrao Singh v. Darbar Singh, Jaya Bachchan v. UoI, Consumer Education and Research Society v. UoI). And there are constant efforts from parliamentarians to run away from this veil of office by a special enactment to exempt certain offices from the Office of Profit criteria.

The Parliament Prevention from Disqualification Act, 1959 has itself been amended five times to increase the number of offices exempt from being regarded as a ‘Office of Profit’. However, one of the less attended premises of the concept has been whether the principle of ‘Office of Profit’ is applicable to post-retirement appointments? Knowing that the Judiciary is the upholder of the conscience of the Constitution, it is of utmost importance that the work of the judiciary is discharged by the judge with minimal temptation.

It is a matter of dire necessity that the judiciary be immune to temptations from other branches of the State. Therefore, it becomes a matter of intrigue as to why never has the question been raised whether the judiciary is covered under this principle of ‘Office of Profit’ or not. Mostly because till the time judiciary was discharging its duty in its position as a judge, it could not hold any office apart from its judicial post.

But there is still a chance that a judge could be tempted via post-retirement appointment. So why is the Constitution silent on this phenomenon? Why did the Constituent Assembly not make any provision in this regard? It is not like that there were no discussion on this topic.

Constituent Assembly member Jaspat Roy Kapoor in his 24 May 1949 speech batted for the idea that there should be no appointment of judges after retirement, as there is a possibility that the judge tempted by an executive appointment may corrupt the judgements he/she would deliver.

It is an agreed fact that India as a country would surely like to avail the services of a trained judge even after his/her retirement. But Jaspat Roy replied to this argument by saying that instead of paying them remuneration, the pension received by the Judges postretirement is good enough for them to serve the country. There were other members also who mooted diverse ideas to curb the temptation of the Judiciary.

Professor K.T Shah suggested removing the age limit on retirement of judges and said they should continue to stay in office for the duration of their natural life. This happens in the U.S judiciary (Weslyn Brown, was the oldest living federal Judge and sat on the Bench till the age of 104.) The fact that the judges can be appointed to executive positions after retirement leaves a door open to corruption and influence.

Therefore, it is of utmost necessity that the premise of ‘Office of Profit’ should be given a notional extension to include Judges. Pending this, there should be close inquiry into the judgments delivered by a judge before retirement to eliminate the possibility of bias in favour of the executive. The dispenser of justice must have a clear conscience.

The writer is Assistant Professor of Law, National Law University, Jabalpur.