As a matter of judicial discipline, all judges should be explicitly barred from using judicial honorifics after retirement. This includes the use of words 'former Justice' or 'retired Justice' or 'Hon'ble' in court documents and in oral hearings.
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FORMER high court judges can and do return to law practice in the Supreme Court, or other high courts after retirement. An ordinary litigant in the court, who is up against an opponent represented by a former high court judge, may feel apprehensive about both the process of adjudication as well as the final outcome of the case. Likewise, a judge-now-advocate could profit from the prestige of a former judicial office to derive an unfair advantage in the legal marketplace. These issues go to the very root of independence of higher judiciary but we seldom talk about it.
Article 220 of the Constitution states: "No person who has held office as a permanent judge of a high court shall plead or act in any court or before any authority in India except the Supreme Court and the other high courts." The Bar Council of India Rules state that "any person who has held office as a judge of any high court in India may on retirement be admitted as an advocate on the rolls of any state council where he is eligible to practise."
The Constitution requires high court judges to take an oath at the time of assuming office: high court judges must perform their constitutional functions without any fear or favour. However, there is nothing in the law to guide the conduct of former judges of the high courts after they leave the Bench. Former high court judges are not bound by judicial discipline or any self-imposed code of conduct that otherwise binds them as sitting judges. Besides, the Bar Council of India Rules state that an advocate's "signboard" or "nameplate" should not "indicate" that they have been a judge. I would think that this extends to letterheads, business cards and email signatures. But it stops there.
“The role of a judge should not be seen as a stepping stone for future careers in the legal profession. This would ordinarily include all post-bench activities that judges may be perceived to profit from their past experience as a judge.
One would think that the prestige of an office is immovable: it does not move with the office holder. But this may not be entirely true of former judges. Be it in the media, or public events, former judges continue to be referred to as 'justices'. Most of the time, they continue to be referred to as 'Hon'ble', many years after retirement. The references also occur in pleadings, orders, or official notifications. For instance, the latest Supreme Court notification designating former judges as senior advocates of the Supreme Court refer to them as "Hon'ble Justice" so and so.
Just like any other title or vestige, the use of the word 'Justice' after retirement is problematic and gives rise to ethical considerations. Imagine two sides to a legal argument before a bench. On the one hand, you have a lawyer and on the other hand you have a retired judge. The use of judicial honorific may seem to lend greater weight to the argument advanced by the retired judge. Use of prestige of a former judge's office will be perceived by an ordinary litigant as claiming superiority over the opponent counsel or influencing (actually or apparently) the court proceedings or the presiding judge. The presiding judge may not object to the use as a matter of courtesy. This will create an unfair advantage and have some special influence on the presiding judge. Public confidence in the judiciary rests on facts and reality, but it also rests on reasonable perceptions.
Much of the reasons against the use of judicial honorifics after retirement match with the reasons against return of former judges to law practice. In the original draft of Dr. B.R. Ambedkar's Constitution, Article 196 (which subsequently took the shape of Article 220) provided for an absolute bar. Through the Constitution (Seventh Amendment) Act, 1956, Article 220 came to be amended to lift this absolute bar.
The Assembly rejected an amendment moved by Hukum Singh seeking a ban only within the jurisdiction of the high court in which the person concerned held the office. Another member, Tej Bahadur Sapru, expressed strong views in favour of an absolute bar: "I think the rule in future should be that any barrister or advocate who accepts a seat on the Bench shall be prohibited from resuming practice anywhere on retirement. A seat on the Bench gives them pre-eminence over their colleagues…and thus, instead of helping justice, they act as a hindrance to free justice…"
The role of a judge should not be seen as a stepping stone for future careers in the legal profession. This would ordinarily include all post-bench activities that judges may be perceived to profit from their past experience as a judge. The reasons against judges returning to law practice is best summarised by the Canadian Government: "This restriction addresses the primary concerns of impartiality and the appearance of impartiality: (1) litigants and members of the public may reasonably perceive that appointment as a judge is viewed by a person as a career move toward a lucrative post-judge career; and (2) the client who is being represented in court by a retired judge will be perceived as having an unfair advantage. Both considerations impact negatively on the fundamental necessity of public confidence in judicial impartiality."
Perhaps, the only authority against the use of judicial honorifics by former judges is the Bangalore Principles of Judicial Conduct, which state the following: "153. Depending on local convention, a former judge might refer to past appointment as a 'judge' or 'justice' in an advertisement offering mediation or arbitration services since the information indicates the former judge's experience as a fact finder. However, the title should be accompanied by the words 'retired' or 'former' to indicate that he or she no longer serves as a judge. Former judges should not use the word 'Honourable' or the abbreviation 'Hon.' in advertisements offering such services."
“For an ordinary litigant, the fact that the other side's lawyer is a former judge will almost always be considered to suggest unfairness and partiality. This may not be true in every case, perhaps none at all, but public perception is important.
Importantly, the problems associated with use of judicial honorifics after retirement apply equally to former judges of the Supreme Court. For instance, Rohinton F. Nariman, a retired judge of the Supreme Court, runs a YouTube channel under the title Justice Nariman Official Channel. But special consideration should be given to high court judges because, unlike former Supreme Court judges, they can and do return to law practice and are seen in courtrooms and are part of the judicial adjudication process.
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As a matter of judicial discipline, all judges should be explicitly barred from using judicial honorifics after retirement. This includes the use of words 'former Justice' or 'retired Justice' or 'Hon'ble' in court documents and in oral hearings. But there is a debate to be had on whether India should put restrictions (such as cooling-off period between exit from the bench and return to law practice) on former judges who wish to return to law practice. If yes, what could those restrictions be?
For an ordinary litigant, the fact that the other side's lawyer is a former judge will almost always be considered to suggest unfairness and partiality. This may not be true in every case, perhaps none at all, but public perception is important. For the ordinary litigant, the decision-making process gets impaired due to this seeming imbalance of legal representation. Even the presiding judge would not feel very comfortable when the arguing lawyer herself is a former judge.
Some countries provide for a cooling-off period between exit from the Bench and return to law practice. They consider this as the least restrictive measure to preserve the independence of the judiciary. Especially, in situations where a judge may have to resign early on in their career due to personal reasons and it would seem harsh to proscribe them to return to law practice. But these measures do not, and cannot, save an idea that is inherently bad. Besides, there should be a bar on practising in courtrooms – where justice is seen to be delivered – and not on engaging in private practice such as arbitration or mediation, or even legal advisory services.