Less than a month after he assumed office, Chief Justice of India (CJI), Bhushan Ramkrishna Gavai, has taken the lid off one of judiciary’s sacred holy cows. Judges, he said, taking up government appointments ‘immediately after retirement’ or resigning to contest elections ‘raises significant ethical concerns and invites public scrutiny.’
Coming from the highest-ranking judicial officer in the country, the words have acquired a new meaning. Making clear he has decided not to accept any post-retirement role or position from the government, Gavai said that “a judge contesting an election for a political office can lead to doubts regarding the independence and impartiality of the judiciary, as it may be seen as a conflict of interest or as an attempt to gain favour with the government”.
This candid admission, and one that set the cat among the judicial pigeons, came at a roundtable on June 3 at the UK Supreme Court, hosted by Lord Reed of Allermuir, President of the UK Supreme Court.
The CJI said that “the timing and nature of such post-retirement engagements could undermine the public’s trust in the judiciary’s integrity, as it could create a perception that judicial decisions were influenced by the prospect of future government appointments or political involvement”.
Admitting that “there have been instances of corruption and misconduct that have surfaced even within the judiciary,” CJI Gavai hailed the move to make the assets of Supreme Court judges public.
The apex Court has recently initiated a probe into allegations against a Delhi High Court judge after a significant amount of cash was recovered from his official residence following a fire incident. Judge Yashwant Varma has been transferred back to Allahabad High Court.
The CJI’s sentiment has been noted by many, including veteran public interest lawyers like Prashant Bhushan: “There is no doubt that the CJI’s is a big admission. Post-retirement jobs have seriously compromised judicial independence. Judges need to keep post-retirement job offers by the government at an arm’s length,” Bhushan told this reporter.
To be sure, there is no provision in law that bars judges from taking up post-retirement assignments, and neither is there a cooling-off period – unlike in the case of superannuating bureaucrats. However, critics see immediate post-retirement appointments as a potential conflict of interest, pointing out that they create questions about judgments issued by judges while in service.
Ranjan Gogoi became an MP
This subject, never too below the surface, exploded in the open in mid-2019, when Ranjan Gogoi, the forty-sixth Chief Justice of India became a member of Parliament. The Narendra Modi government invited him to the 250-member Rajya Sabha or the upper house. Appointed for their knowledge of — or experience in — ‘literature, science, art, and social service’, nominated MPs are often described as political cronies. On 24 March 2020, livid opposition benches walked off crying ‘Shame! Shame!’ just as the former CJI began reciting his oath of office.
Later, Gogoi put up a stout defence. His judgments, he told journalists, involved other judges. Because two or more judges congregate to hear cases in the Supreme Court, he could hardly be the only guilty one. If he was ‘corrupt’, then so were the judges who shared benches and decisions with him! For good measure, he let it be known that his emoluments as a MP were hardly on par with what he received as CJI.
As a judge, Gogoi had presided over benches that handled many sensitive cases, including the Ramjanmabhoomi-Babri Masjid land dispute and the review petitions filed to seek an investigation into India’s purchase of 36 Rafale fighter jets from France.
Another former CJI, P. Sathasivam, was appointed Governor of Kerala four months after he retired in 2014. These are not isolated cases. According to an investigation published by the Print in 2021, of the 103 Supreme Court judges who retired since 1999, at least 73 – or a total of 71 percent – took up some sort of assignment after demitting office.
These included appointments to tribunals, human rights commissions, government-appointed ad hoc commissions, water tribunals, and as lokayuktas or state-level anti-corruption officials. Add to these, appointments to bodies such as the National Consumer Disputes Redressal Forum (NCDRC) and the Law Commission are pretty much the norm.
Which makes the subject problematic. Prashant Bhushan agrees that most – if not all – such appointments involve the government, making it a Hobson’s Choice at all times.
Says former Supreme Court judge, Jasti Chelameswar: “At the philosophical level, the CJI is right, but the fact is that many members of the judiciary are corrupt and everyone knows it. The rot runs deep, so who will follow what the CJI said?’’
He told this reporter: `” lot depends upon the conduct of the man in office. I, for instance, declared that I will not accept an office post-retirement. But it is equally true that judges have prostrated themselves at the feet of politicians, first with the Congress and now with the BJP.”
‘Two kinds of judges’
Chelameswar quotes the late Arun Jaitley, former Law Minister, and his scathing assessment of judges. “There are two kinds of judges – those who know the law and those who know the Law Minister,” the BJP leader had said in 2012, adding that “pre-retirement judgements are influenced by post-retirement jobs.” This was, of course, when the BJP was out of power.
Noted human rights advocate, Colin Gonsalves, welcomes the CJI’s comments. “This is an excellent idea. The appointments should not be done by governments in the first place. If the executive appoints you and makes the financial allocation, then where is the independence for the judiciary? Instead, India needs to utilise its vast talent pool of specialists and domain knowledge experts, who have no say in the matter so far. Sure, the judges know law but what do they know about human rights to head the NHRC, about water tribunals, to become their heads, or about social sciences?’’
In his estimate, no seismic shift in law is needed. “Just minor tweaks in the existing statute books will do,’’ he said in reply to a question as to who will head the plethora of bodies and government committees and institutions if judges decline to take up such appointments.
Such post-retirement appointments have a hoary tradition. Prime Minister Jawaharlal Nehru inaugurated the practice of inviting judges to this banquet. In 1952, he appointed Sir Saiyid Fazl Ali, one of India’s original Supreme Court justices, as the governor of Orissa. Sir Saiyid was still a judge when Nehru announced his decision, and critics were not amused.
But India’s first prime minister persisted, feting Sir Saiyid and others with a bevy of post-retirement jobs. He made them governors and ambassadors, placed them in university administrations and tasked them with running advisory and investigative commissions. And these stalwarts obliged. Sir Saiyid reorganised states into linguistic units; MC Mahajan settled boundary disputes among states; SR Das probed ministerial malfeasance; SK Das examined bureaucratic bungling; Vivian Bose investigated corporate corruption while Venkatarama Aiyer recommended tender policy.
A judge contesting an election for a political office can lead to doubts regarding the independence and impartiality of the judiciary.
Clearly, that trend has now touched new heights – or lows. Wrote UK-based legal scholar, Shubhankar Dam in a paper: “This system of jobs for retired judges cycles like an economy of influence — one that has damaged the court’s ability to achieve its obligatory purpose.”
Clearly, Nehru’s inaugural practice is now the Indian republic’s abiding habit.
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