Abhinav Verma

| @ | January 22,2019

[dropcap]P[/dropcap]OST-RETIREMENT jobs for judges of the higher judiciary always seem to make a couple of news cycles but are ultimately devoid of any sustained dialogue or tangible systematic change. This is probably due to the obvious benefits bridging over the arm’s length distance between the three pillars of democracy coupled with a system that works and has no political will to change, no matter whether it eats away at democracy itself in the longer run. This debate was sparked off recently again with respect to Justice AK Sikri’s acceptance (and subsequent refusal) of a post-retirement assignment at the Commonwealth Secretariat Arbitral Tribunal, some three days after he voted alongside PM Modi to remove Alok Verma as CBI director.

Plagued by criticism, Justice Sikri stepped down from the position and presented justifications regarding the timing of his acceptance of this plum job.  Arguments in his favor were two – that this was a prestigious employment without any remuneration and that he had accepted this position in the start of December itself, before he voted on the PM-led committee. The first argument falls flat considering many post-retirement positions aren’t undertaken for money but for the prestige and power associated with the assignment. The latter doesn’t account for the power of conscience in judicial recusals. If justice must also appear to have been done, then Justice Sikri should’ve disclosed the fact before ever being placed on this committee. Even beyond Justice Sikri, the CJI who was involved with both nominations (to the CSAT and the Committee under Section 4B of the Delhi Special Police Establishment Act) should’ve maintained circumspection while recommending Justice Sikri to the latter committee when he had already nominated him to the former.

Judiciary in dependence

 

Independence of the judiciary is the cornerstone of democracy and post-retirement offers seem to make the judges, who are otherwise supposed to have a “high moral character” and “independence in functioning”, vastly dependent on the executive. Besides, independence is almost always inconspicuously threatened by a judge’s conscious or unconscious hopes or fears about treatment by the executive. Per Lord Reid, the present Deputy President of the Supreme Court of UK, “It is for that reason a judge must not be dependent on the executive, however well the executive may behave: independence connotes the absence of dependence”. Independence can be undermined in many different ways, some of them subtle and clandestine, and one of them is offering post-retirement benefits immediately upon retirement. While it is contested whether post-retirement jobs create a certain bias in pre-retirement rulings in reality, it cannot be stressed enough that it does taint the determinations of the Apex Court.

The debate of post retirement jobs for judges of the higher judiciary was sparked off recently with respect to Justice AK Sikri’s acceptance (and subsequent refusal) of a post-retirement assignment at the Commonwealth Secretariat Arbitral Tribunal, some three days after he voted alongside PM Modi to remove Alok Verma as CBI director. Plagued by criticism, Justice Sikri stepped down from the position and presented justifications regarding the timing of his acceptance of this plum job

A 2016 joint research conducted by Madhav S. Aney, Shubhankar Dam and Giovanni Ko (faculty members at the Singapore Management University, City University of Hong Kong, and Nanyang Technological University respectively) studied a data set of all cases before the Supreme Court of India between 1999 and 2014 involving the government. They found that judges who have incentives to pander are more likely to rule in favor of the government. The exposure of a judge to pandering incentives in a case is jointly determined by whether the case is politically salient and whether the judge retires with enough time (at least one year) left in a government’s term to be rewarded with a prestigious job. They further found that the mechanism by which judges pander is through potentially harmful manipulation of actual decisions in favor of the government rather than through more benign means, such as manipulating judgment authorship. They also inferred that deciding more cases in favor of the government is positively correlated with being appointed to prestigious post-Supreme Court jobs.

Structural Problems with the Tribunal System

 

Leaving aside gubernatorial sinecure and appointments to cushy corporate boards, most judges (as many as 56% of those who accept post-retirement jobs) do so with national commissions, boards, tribunals, quasi-judicial tribunals etc. According to a study done by Vidhi Centre for Legal Policy, as many as 70 of over 100 retired Supreme Court judges have taken up such assignments in organizations like the National Human Rights Commission, National Consumer Disputes Redressal Commission, Armed Forces Tribunal, Law Commission of India etc. The study says that there are several reasons why these retired judges are given these postings, but the primary one is that the statutes governing these bodies have specifically laid down the criteria in a way that only sitting or retired judges can be appointed.

While these specifications could be mentioned to preserve the value of their legal acumen and vast experience, these tribunals don’t however lay down transparent selection mechanisms that are devoid of influence of the executive, leaving immense scope of political manipulation. Ideally, taking the appointments of the chairpersons of judicial and quasi-judicial bodies outside the ambit of the Central Government and vesting it with the CJI or the Collegium solely, also seems like a tricky proposition. One cannot safeguard the judge from manipulation from outside the court only to make her vulnerable to that from inside. Practically speaking, if these statutes themselves mentioned clear specifications for the appointees that both the Central Government and the CJI had to abide by, thereby limiting their discretion, the scope of political give-or-take would reduce substantially. These specifications could be in terms of the numbers of constitutional matters or PILs heard, number of years of practice, research expertise, number of years that the judge has served on a bench that decided matters of similar nature and many more. In the absence of these prescribed particulars, it is unlikely the judicial integrity while in office can be assured.

Taking the debate beyond the Judiciary

 

It is obvious that the pre-retirement lure of post-retirement appointments could influence decisions, conclusions, and inquiries that are undertaken while in office. This brings in some malice (or at least the threat thereof) in the discharge of the constitutional duties by all constitutional functionaries, beyond judges of the higher judiciary as well, even though the problem is most critical when it serves to dilute the independence of the judiciary. In February 2016, the former CAG Vinod Rai was appointed as the Chairman of the Banks Board Bureau, which revitalized the debate on the pre-retirement lure of post-retirement jobs and appointments. Some holders of constitutional offices have even gone as far as contesting elections to the legislative assembly after their term ended, like M.S. Gill, who after serving as the Chief Election Commissioner of India, became a Union Minister in Manmohan Singh’s cabinet, and later a Member of Parliament in the Rajya Sabha. Similarly, the BJP-led government under Vajpayee, appointed former CAG T N Chaturvedi as the Governor of Karnataka, presumably because he looked closely at the Bofors scandal during Rajiv Gandhi’s time.

The pre-retirement lure of post-retirement appointments could influence decisions, conclusions, and inquiries that are undertaken while in office. This brings in some malice (or at least the threat thereof) in the discharge of the constitutional duties by all constitutional functionaries. This weakens the independence of constitutional functionaries in the disposal of their duties, as it may be so that the conduct of the officer is influenced by the desire to get an attractive post-retirement appointment

Currently, there are inadequate legislative provisions in this regard. On one hand, the Constitution of India imposes a complete restriction on certain constitutional functionaries, like the CAG [Art. 148(4)], and Chairman and members of the UPSC [Art. 319] with respect to their future employment under the Union or any state government after he/she ceases to hold office. On the other hand, however, it only restricts practice by former Supreme Court Judges in any court within India [Art. 124(7)]. Further, an inherent dichotomy is seen in the CCS Rules that prescribe a two-year ‘cooling off’ period after retirement [Rule 10 (1)] for Central Service Group ‘A’, however no such provision is made to restrict servicemen from entering the political arena or getting political appointments. Sometimes, the government has gone as far as to amend existing legislation to ensure that they are able to retain certain persons and ensure that their quid pro quo is honored. The July 2014 amendment to the TRAI Act 1997 seems to have been motivated by the need to facilitate the appointment of Nripendra Misra (former TRAI Chairman) to the Prime Minister’s Office as his Principal Secretary. This amendment dilutes the restrictions placed on future employability with the government or any commercial enterprise, by making this restriction subject to the Central Government’s approval. 

This seems to weaken the independence of constitutional functionaries in the disposal of their duties, as it may be so that the conduct of the officer is influenced by the desire to get an attractive post-retirement appointment. This subverts the constitutional sanctity of these positions, striking directly at the impartiality commensurate with these offices by opening the floodgates for quid pro quo by the current governments or private entities for such assignments.

Setting up an appropriate control system

 

At the outset, it must be clarified that no jurisdiction is free from such bias, in fact most have not even recognized this as a problem. Even though there exist no policy or judicial measures that have nipped the issue in the bud, there are supplementary measures that have protected or at least militated against such risks. A study of the appointment, tenure and removal of judges under the Commonwealth Principles by the British Institute of International and Comparative Law shows that even though a mandatory retirement age of at least 60 is a minimum standard applicable throughout the Commonwealth, best practice in modern conditions would probably require the mandatory age to be set at, or closer to, 70 years, and this would guard against the risk of conflicts of interest arising in relation to post-retirement employment for which a judge may be eligible. Life tenures too, like in the United States, have its own demerits, but ideally were set in order to preserve judicial independence. For India, increasing the age of retirement for judges will require a constitutional amendment and by extension a massive political will, which in the current climate might be hard to achieve.

It must be clarified that no jurisdiction is free from such bias, in fact most have not even recognized this as a problem. Even though there exist no policy or judicial measures that have nipped the issue in the bud, there are supplementary measures that have protected or at least militated against such risks. Increasing the age of retirement from 60 to 70 would guard against the risk of conflicts of interest arising in relation to post-retirement employment for which a judge may be eligible

In the absence of an appropriate legislative framework, self-regulation would be the guiding light. Many judges, including recently retired Justices Chelameswar and Kurian Joseph have categorically stated that they will not accept any post-retirement jobs. Former CJIs Kapadia, Lodha and Thakur, including other justices, also made such commitments. Having sworn allegiance to upholding constitutional morality, it should ideally not be hard to secure such self-regulation, but in reality, the normative doesn’t translate into action. In the absence of conscientious self-regulation by judges and commensurate political will to increase retirement ages and bar any post-retirement activities, a cooling off period could be the needed middle ground. A cooling off period serves many purposes. First, it could be flexible enough to balance between the degrees of independence required from the position. For instance, a shorter cooling off period for High Courts vis-à-vis the Supreme Court. Second, India already has immense experience with cooling off periods. A cooling off period could be introduced by either amending the Constitution to the tone of provisions similar to those within Articles 148 or 319, or a special law could also be passed by Parliament prohibiting retired judges from taking up any appointment till the cooling off period is exhausted. A cooling off period could theoretically survive without having to amend all constituting statutes of judicial and quasi-judicial bodies that prescribe appointment of retired judges – simply by harmoniously reading in the cooling off period within the existing framework.

For other constitutional positions that very well sit within the executive arm of the government, there is a need to create a glass wall when it comes to influences of political parties as well as commercial entities. When it comes to their re-employment in other bodies like the CAG, CVC, CIC etc., which are by custom manned by retired government officers, there could very well be a cooling off period. Such a period would also be mandated while securing a cushy corporate job. Whether or not retired, the issue of constitutional functionaries contesting political elections is a contentious one since it has to account for their right to political participation. The view that favors a complete prohibition is founded on the separation of powers, which is a constitutional ideal that should be respected not only while in office but also beyond. Be that as it may, it is necessary that the people themselves and their political representatives take this issue up and come up with adequate systems of control – the question, however, is if one can find within herself to place constitutional priorities and ethos above one’s own.

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