Could post-retirement benefits for Supreme Court judges hamper judicial independence?

On August 26, the day of former Chief Justice of India NV Ramana’s retirement, the central government amended the law to give extended benefits to retired Supreme Court judges.

After retirement, judges get pensions and other allowances. Now, they will also be assigned a domestic worker and a chauffeur for their lifetime. Retired chief justices of the Supreme Court will additionally be assigned a lifetime secretarial assistant and free accommodation for six months. Retired judges will also get security cover for a limited time – five years for chief justices and three years for the others.

Earlier, retired judges were given an allowance to employ their own staff and security. But now staff from the establishment of the Supreme Court or High Courts will be deployed for them.

These post-retirement benefits have got some legal commentators concerned.

“All these benefits, such as drivers, domestic workers etc, were fairly standard benefits for retired prime ministers, governors etc,” said Shubhankar Dam, a legal academic who researches on the post-retirement life of judges. Extending them to judges was unlikely to make a tangible difference to the judicial decision-making process, Dam said, but they do have a “creeping tendency to pull judges into the government’s orbit, psychologically speaking”.

The post-retirement life of judges has been a matter of long-standing debate. Many retired judges take up postings in tribunals – quasi-judicial bodies – where appointments are controlled by the executive, raising concern about the government’s influence over sitting judges.

Many independent observers of the judiciary have been asking for changes that would provide financial security to judges without creating situations of conflict of interest.

Why some judges are unhappy

After they retire, judges of the Supreme Court are entitled to a pension, which amounts to half the salary they drew while they were in service.

Since Supreme Court judges draw an annual salary of Rs 30 lakh, they are entitled to an annual pension of Rs 15 lakh. The chief justice of India gets a salary of Rs 33.6 lakh a year, and an annual pension of Rs 16.8 lakh post-retirement.

All retired Supreme Court judges also get a dearness allowance and a one-time gratuity payment of Rs 20 lakh.

In addition, retired judges got Rs 14,000 and retired chief justices Rs 25,000 per month to maintain an office and staff. In 2021, these amounts were increased to Rs 39,000 for retired judges and Rs 70,000 for retired chief justices.

Now, the latest set of changes has replaced the monthly payment with the deployment of court staffers for judges. On August 23, the Centre updated the Supreme Court Judges Rules, 1959, to include benefits such as security cover and chauffeurs for retired Supreme Court judges for a year. Three days later, the Centre brought in the August 26 amendments to extend the time period for these benefits to the lifetime of judges, among other changes.

Some retired judges are unhappy with these changes. They told The Hindu that they would prefer getting allowances to hire employees of their choice as getting court employees suits retired judges who live in cities.

Problems with benefits

Some lawyers have questioned the need for these post-retirement benefits. “These benefits are not required,” said Prashant Bhushan, advocate and convenor of Campaign for Judicial Accountability and Reforms. “Supreme Court judges get a substantial pension.”

Bhushan pointed out that the way these benefits are decided is also problematic. “This should be done by law and not through executive action,” he said.

Dam feels that the more benefits judges get from the state, the more they get “sucked in [to] the bureautic apparatus.”

“Overall, this will change how the judges perceive themselves [as being closer to the executive],” he added, even if materially, it does not change their decisions.

Dam also said such benefits can affect how the public perceives judges. He pointed out that in many developed democracies, judges are not provided such “lingering benefits”. “To me, paying judges more [after retirement] seems like a better solution,” he said.

Long-standing debate

Calls for a higher pension for judges after retirement has been a long-standing ask. As far back as 1958, the 14th Law Commission of India report had made such a recommendation. More recently, in 2013, former Union Law Minister the late Arun Jaitley had argued that judges should be given a pension equal to their last drawn salary.

Advocates of a higher pension say it may reduce the tendency of retired judges to take up government-appointment post-retirement jobs, as is the case presently. A 2021 analysis by The Print found that out of 103 Supreme Court judges who have retired since 1999, at least 60% of them had taken government-appointed positions, most of them in tribunals. In many cases, the law mandated that retired judges be appointed to these positions.

This could hamper judicial independence, as noted by the law commission in 1958. The problem is aggravated since governments are the largest litigants, accounting for 50% of cases, according to former Chief Justice of India Ramana. A 2021 study found that delivering a verdict in favour of the government “increases the likelihood of being appointed to a post-SC job by 13-17%”.

There are also other avenues of work that can threaten judicial independence. Since the Constitution bars Supreme Court judges from practising before any court of law, judges become arbitrators or provide legal opinions and earn hefty fees. This also means that wealthy litigants could exercise influence over the judiciary, as has been alleged by former Supreme Court judges themselves.

Since many post-retirement jobs have their own perks, retired judges might not immediately make use of the benefits in the latest amendments. The amendment says that these benefits will only become admissible “if no such facilities are taken from any High Court or any other government body where the judge has taken up an assignment after they retire.” However, they will come into play after judges retire from these positions.

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