Politics | It’s time to debate on post-retirement sinecures for judges

CJI Ranjan Gogoi

Former Chief Justice of India (CJI) Ranjan Gogoi's nomination to the Rajya Sabha has sparked an outrage among sections of people. He is the first former CJI to be nominated to the Rajya Sabha three months after his retirement — though he is not the first to make it to the Upper House.

Former CJI Ranganath Mishra was also a Rajya Sabha member, but he was elected on a Congress ticket, seven years after he retired.

Those opposing Gogoi’s appointment openly refer to the sensitive cases he handled as CJI — the Ayodhya land dispute and the Rafale fighter deal — and see a ‘quid pro quo’ in it. What they overlook is that no Supreme Court judge ever decides cases on his/her own — as he/she is one of the judges in a large bench that hands out the verdict. Also, the fact is that Gogoi did not write the main Ayodhya judgment — it was done by Justice DY Chandrachud.

Nevertheless, the reactions from the judicial fraternity have been mixed. Gogoi’s former colleague Justice (retired) Madan B Lokur thinks whether the “last bastion” of independence, impartiality and integrity has fallen. Judge Kurian Jospeh, another former colleague, has declared that his acceptance of the Upper House nomination has “certainly shaken” the confidence of the common man, and “compromised” the independence and impartiality of the judiciary. Retired SC judge AK Patnaik has gone further stating that a retired CJI has no role in the Rajya Sabha and neither the President should appoint a former CJI nor should he accept it. “A judge should retire gracefully.”

Ex-CJIs KG Balakrishnan and P Sathasivam see no wrong in Gogoi accepting the government’s offer. Then they themselves after retirement became the National Human Rights Commission (NHRC) chairman and governor of Kerala, respectively, soon after retirement.

Gogoi has reserved his full response until he takes oath as a Rajya Sabha member. He has observed that his presence in Parliament would be an opportunity to underline the views of the judiciary before the law-makers and vice-versa, and both sides must work together at “some point of time for nation-building.” Even this comment has riled his critics. Newspaper editorials have even called upon Gogoi to rethink and reject the nomination in the best interests of the institutions.

It would do good to recall previous instances of such appointments.

In 1952, Justice Fazl Ali became Governor of Odisha shortly after retiring from the apex court. In 1958, then Prime Minister Jawaharlal Nehru asked Bombay High Court Chief Justice MC Chagla to become India’s Ambassador to the United States, which he accepted. In 1967, CJ Subba Rao quit the SC to contest for elections to the President’s office (and lost to Zakir Hussain).
In 1983, Justice Baharul Islam resigned from the Supreme Court to contest for a Lok Sabha seat as a Congress candidate after ruling in favour of then Bihar CM Jagannath Mishra in a corruption case. Islam was Cong MP in 1972 and was then made a judge of Guwahati HC. He had retired from the post in 1980 but was made SC judge after Indira Gandhi came into power.

Justice Rangnath Mishra headed the panel to probe the 1984 riots and Sikh killings under the Rajiv Gandhi regime, which absolved charges against Congressmen who were accused of a hand in the riots. He was elected to the Rajya Sabha as Congress nominee in 1998. Before then, he served as the first head of the NHRC from 1993 till 1996. It was then seen as a Congress government largesse for his role in giving clean chit to its leaders in the riots.
Late former CJI Mohammed Hidayatullah accepted the post of Vice-President nine years after his retirement.

Between the whataboutery (questioning the appointments made by the Congress regimes earlier) to defend the Bharatiya Janata Party (BJP) government's move and the extreme outrage dubbing the appointment as an attempt to influence judges, the answer may lie in such post-retirement sinecures being time-barred. They must cover all positions, including tribunals and quasi-judicial bodies. A ‘cooling-off’ period between the date of retirement and appointment to any post or election to Parliament would have softened the criticisms. Sometimes, they come too close for comfort in terms of a question of constitutional propriety.
In 2012, late former law minister Arun Jaitley suggested a two-year gap between appointment for a fresh assignment and retirement. He had in mind the hectic lobbying among some judges (on the verge of retirement) for heading various tribunals, and went on to remark that “pre-retirement judgments are influenced by a desire for post-retirement job.” He had also suggested that the last drawn salary be treated as life-long monthly pension to insulate them from political influence.

In 1958, the Law Commission recommended banning post-retirement government employment for SC judges because the government was a large litigant in the courts. Perhaps, it’s time to reopen the old debate on this issue.

Shekhar Iyer is former senior associate editor of Hindustan Times and political editor of Deccan Herald. Views are personal.