Vinayak Dalmia
It is clear that in these interesting times, the judiciary needs to self-quarantine itself from the trappings of political life.
While there are no explicit prohibitions against judges accepting privileges after retirement, it is time that such ideas be made law. Simply frowning upon it or relying on the probity of individuals will not suffice.
In the United States — a much older democracy than India — federal judges hold the office for life. That office is their pinnacle, their last hurrah. In India, judgeships come with a retirement age. There is life beyond the courts and with that the risk of political patronage.
Former Chief Justice of India Justice Ranjan Gogoi had himself authored a judgment attributing post-retirement jobs as bringing the judiciary into disrepute. There is ample evidence to support this.
An Independent Judiciary
As per the Constitution, a retired Supreme Court judge cannot “plead or act in any court or before any authority within the territory of India”. The third schedule demands judges perform their duties without fear or favour. In case law, the Sankalchand (1977) and SP Gupta (1981) cases were landmark judgments extolling the virtues of judicial independence. In Nixon M Joseph and Anr vs Union of India (1998), the Kerala High Court frowned upon post-retirement perks for judges.
While separation of powers is embedded in our Constitution, nowhere does it prohibit judges from accepting government appointments post retirement.
In the Constituent Assembly debates, KT Shah argued against judges taking up executive office. He spoke of “temptation” for “greater emoluments” risking the judge’s independence. Shah proposed the introduction of Article 193-A in the Constitution. At the time there was little overlap between the government and the judiciary. The suggestion was rejected by BR Ambedkar as he felt the likelihood of influence was “very remote”.
The 1958, the 14th report of the law commission recommended banning “employment in important positions under the government” for retired Supreme Court judges. Sadly those recommendations were never actioned.
Since then the government has become one of the largest litigants in India.
Let no political party going forward be able to entertain the possibility of a biased judiciary. Let no judiciary going forward be able to conjure up post retirement government perks. Let no one going forward lose faith in the judiciary.
Judges Too Are Human
Chief Justices YV Chandrachud, PN Bhagwati and RS Pathak were shining beacons from the 1980s who went on record to raise their objections of post-retirement perks. The best example is CJI Mohammad Hidayatullah who in 1970 delivered his last ruling, one which went against the government of the day (privy purses case). In doing so, he gave up certain subsequent opportunities. Hidayatullah became Vice-President of India after a substantial cooling-off period, in 1979.
There should not a job after ‘the’ job. Institutions are larger than the individuals that occupy them. Their sanctity must be preserved with religious fervour.
Sadly political patronage has been offered to judges before. From Justice Fazl Ali (1952) as Orissa Governor to Chief Justice P Sathasivam (in recent times) as Kerala Governor, the examples are many.
We must acknowledge that judges too are human as the rest of us. The system must not rely on their higher virtues but be immune to their human frailness. While it would be unfair to say that this is the first time it has happened, it would, however, be unwise to do nothing about it.
The Way Forward
It is time to re-look at the proposed Article 193-A. The relationship between constitutional doctrine and the political environment is ever changing — but, judicial independence should not change.
Some tribunals require the experience of a judge. However, there should be prohibition (or a lengthy moratorium) on judges accepting positions by the executive. This should include Rajya Sabha appointments and governorships — the most coveted of the posts. In this regard, the 1999 Supreme Court ‘Code of Judicial ethics’ must also be modified.
Similar provisions do exist elsewhere within the legal tapestry. For example, the Lokpal and Lokayukta Act, 2013 for Judges, Article 148 for CAG and Article 319 for the UPSC Chairperson.
Rather than focusing on this individual case, which is unlikely to be impacted, we must look at the future. MC Setalvad, India’s first Attorney General, spoke of “constitutional propriety” in the context of an independent judiciary. We must fight for it, as it is all we have.
While the civil liberties will have nothing to fear from the judiciary alone, they will have everything to fear from the union of the judiciary with either of the other two branches — this was Justice Gogoi quoting Alexander Hamilton, the first treasury secretary of the US, in a speech he made in 2018. He may not have been the first, but can he go down as the last emperor?
Vinayak Dalmia is a Delhi-based lawyer, who focuses on national security and foreign affairs. Views are personal.
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