It has been recently announced that the President has nominated former Chief Justice of India, Ranjan Gogoi, to the Rajya Sabha. Gogoi retired from the Supreme Court in November 2019. Retired judges have been appointed to political office since Prime Minister Jawaharlal Nehru’s tenure. However, the time has come for us to ask a difficult question: Should judges stop accepting post-retirement jobs offered by the government, at least for a few years after retiring, because accepting such posts could undermine the independence of the judiciary?
Unlike federal judges in the US, judges in India do not hold office for life. They remain in office until they reach the retirement age — 65 for Supreme Court judges and 62 for high court judges. These judges do not hold their offices at the “pleasure” of the President. In other words, they cannot be arbitrarily removed by the government once they are appointed, and can only be impeached by a supermajority of both houses of Parliament “on the ground of proved misbehaviour or incapacity”. The impeachment process is a very difficult one and never in the history of independent India has a judge been impeached, though attempts have sometimes been made to do so. Judges, therefore, enjoy security of tenure while holding office, which is essential for maintaining judicial independence.
However, the retirement of judges threatens to undermine judicial independence. This is because some judges — not all — are offered post-retirement employment by the government. It is often feared that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position.
The Constitution provides that a retired Supreme Court judge cannot “plead or act in any court or before any authority within the territory of India”. In the Constituent Assembly, K T Shah, an economist and advocate, suggested that high court and Supreme Court judges should not take up an executive office with the government, “so that no temptation should be available to a judge for greater emoluments, or greater prestige which would in any way affect his independence as a judge”. However, this suggestion was rejected by B R Ambedkar because he felt that the “judiciary decides cases in which the government has, if at all, the remotest interest, in fact no interest at all”. In Ambedkar’s time, the judiciary was engaged in deciding private disputes and rarely did cases arise between citizens and the government. “Consequently”, said Ambedkar, “the chances of influencing the conduct of a member of the judiciary by the government are very remote”. This reasoning no longer holds today because the government is one of the largest litigants in the courts.
Former CJI Gogoi is certainly not the first retired judge to be appointed to political office. In 1952, Justice Fazl Ali was appointed the Governor of Orissa, shortly after retiring from the Supreme Court. In 1958, Chief Justice M C Chagla resigned from the Bombay High Court in order to become India’s Ambassador to the US at Prime Minister Nehru’s invitation. In April 1967, Chief Justice Subba Rao resigned from the Supreme Court to contest elections for President. In 1983, Justice Baharul Islam resigned from the Supreme Court to contest as a Congress (I) candidate for a Lok Sabha seat, after ruling in favour of Bihar’s Congress (I) chief minister, Jagannath Mishra, in a controversial case where Mishra had been accused of criminal wrongdoing and misuse of office. In more recent times, Chief Justice P Sathasivam was appointed the Governor of Kerala. There are many other such examples.
In the words of India’s first Attorney General, M C Setalvad, all this raises “a question of constitutional propriety” relating to the independence of the judiciary. After all, could the government not use such tactics to reward judges who decide cases in its favour? Further, if a judge decides highly controversial and contested cases in favour of the government and then accepts a post-retirement job, even if there is no actual quid pro quo, would this not lead to the public perception that the independence of the judiciary is compromised?
In its 14th report in 1958, the Law Commission noted that retired Supreme Court judges used to engage in two kinds of work after retirement: Firstly, “chamber practice” (a term which would, today, mean giving opinions to clients and serving as arbitrators in private disputes) and secondly, “employment in important positions under the government”. The Law Commission frowned upon chamber practice, but did not recommend its abolition. However, it strongly recommended banning post-retirement government employment for Supreme Court judges because the government was a large litigant in the courts. The Commission’s recommendations were never implemented.
Several chief justices of the Supreme Court in the 1980s believed that post-retirement employment with the government was undermining the independence of the judiciary. Chief Justice Y V Chandrachud felt that that some judges were looking for post-retirement positions and writing judgments with that in mind. Chief Justice P N Bhagwati thought that many judges hanker after a good retirement job because it enables them to have a rent-free house, a car and driver, and allowances, and also gives them some status. Chief Justice R S Pathak believed that judges with short tenures at the Supreme Court tended to be more pro-government in their approach since they were looking for a suitable position after retirement.
In 1970, Mohammad Hidayatullah was hearing the highly political privy purses case, in which he would deliver his last judgment as CJI. In that case, the Supreme Court held that the Indira Gandhi government’s decision to abolish the “privy purses” paid to former Indian princes (who had agreed to join the Indian Union after the British left India) was illegal. While the hearings were going on, it was reported that Hidayatullah was being considered by the government for the World Court or for the position of Lokpal after he retired. Some lawyers and judges suggested to him that he should not hear the privy purses case since he was being considered for a post-retirement job. However, Hidayatullah made it very clear that even if he were offered any of these positions, he would not accept them. After a cooling-off period, several years after his retirement, Hidayatullah accepted the post of Vice President of India under the Janata government. It is about time that we start expecting the judges of our constitutional courts to follow CJI Hidayatullah’s excellent example.
This article first appeared in the print edition on March 18, 2020 under the title “The Hidayatullah example”. The writer is an advocate at the Bombay High Court and the author of Supreme Whispers: Conversations With Judges of the Supreme Court of India, 1980-89
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