Post-retirement prospects for constitutional court judges tear the fabric of judicial independence

The government's appointment of Justice Sunil Gaur as the chairperson of the Prevention of Money Laundering Appellate (PMLA) Tribunal has once again brought back into the spotlight questions of constitutional significance facing the independence and credibility of India’s higher judiciary.

Gaur retired as a judge of the Delhi High Court on 22 August, soon after he rejected former finance minister P Chidambaram's plea for interim protection from arrest by the Central Bureau of Investigation (CBI) in the INX Media case. If we look at the context in which the judgment was handed down, three things particularly stand out. First, Gaur gave his order two days prior to retirement (and after having reserved it for several months) and at a time when the present dispensation is not going to change in the next four-and-a-half years, ie until the next General Election in 2024.

Secondly, the INX Media case is politically sensitive and the fact that the Solicitor-General of India appeared to argue the case on behalf of the CBI is emblematic of its importance for the government.

Lastly, Gaur's appointment was cleared within days of his retirement, suggesting that an offer was made (and perhaps accepted) during his tenure as a judge in the Delhi High Court.

Ostensibly, it would be naïve to summarily assert, based on the above, that Gaur's appointment as chairperson of the PMLA Tribunal is connected, directly or indirectly, to the order that he gave.

At the same time, it would be anti-democratic to also discount the fact that appointments to tribunals and commissions are considered and cleared behind closed doors and it is nearly impossible to conclusively establish any act of wrongdoing or “misbehaviour” within the meaning of Articles 124 and 218 of the Constitution.

It is imperative, therefore, to understand that this is not just about Gaur or the ruling government. This is about our constitutional courts as a democratic institution and as guardians of people's rights and liberties.

The lure of post-retirement postings has plagued our constitutional courts for many decades, irrespective of the government or party in power. Most judges, from Justice MC Chagla in 1958 to Justice AK Sikri in 2019, have accepted or discussed post-retirement jobs with successive governments. One former Chief Justice of India, P Sathasivam, even accepted appointment as the governor of a state — a decision that sullied the reputation of the Supreme Court.

The question is not whether a pre-retirement ruling in fact led to securing a post-retirement government job, but whether a siting judge who is exposed to the lure of potential future career prospects could be publicly perceived as acting fairly and impartially. Judges are but fallible human beings and personal bias often comes in the way of judicial decision-making and influences the outcome of judgments, one way or another.

Pertinently, the issue of judges being influenced by potential post-retirement career prospects also came up in the Constituent Assembly Debates (7 June, 1949). Professor KT Shah, who was pitted against Rajendra Prasad in the first Presidential Election of Independent India, moved an Amendment to introduce a new Article (Article 193-A) in the Constitution calling for a complete prohibition on judges accepting government jobs post-retirement.

The logic for the amendment, as evinced by Shah, is "so simple and the principle underlying it is so clear that there could be no difference of opinion unless you desire your judiciary to be subservient or in any way influenced by the executive".

Shah's proposal was strenuously (but unconvincingly) opposed by Dr BR Ambedkar, who viewed judges mainly as arbiters of disputes involving private citizens. According to Ambedkar, judges concern themselves with “the rights of the people themselves in which the government of the day can hardly have any interest at all. Consequently, the opportunity for the executive to influence the judiciary is very small…”

Ambedkar’s views in this regard no doubt reek of naivety and laxness. How could a person of his eminence and knowledge discount the fact that the fundamental rights enshrined in Part III of the Constitution are primarily about citizen-State conflicts?

Besides, Ambedkar, who was otherwise constantly vigilant about separation of powers between the judiciary and executive, failed to discern the irony that a government that has no role to play in the appointment of judges could potentially exercise undue influence over them through prospects of post-retirement careers.

While the framers wrote into the Constitution that judges must not “act” or “plead” before any “court” or “authority” in India, there is nothing in the Indian Constitution that prevents the government from offering and, judges from accepting, post-retirement jobs. Indian courts have read this provision very narrowly to exclude situations where judges become governors, Members of Parliament or members of tribunals and commissions of inquiry.

One public interest justification put forward in favor of post-retirement jobs is that judges of high courts and the Supreme Court, who retire at the age of 62 and 65, respectively, have years of considerable judicial experience that could be put to some use even after retirement. However, judicial dependence on the executive is too costly a price that our constitutional democracy must pay for this. In any case, retiring judges early in their judicial careers only to eventually appoint them to administer tribunals and commissions is prima facie self-defeating.

In fact, the same purpose could well be achieved by simply increasing the retirement age of judges in the higher judiciary, to say, 70 years. This could also help us somewhat grapple with the need to appoint more judges, which at times could lead to uncertainty and impaired application of the law, especially in the Supreme Court, which lays down the law of the land.

It may not be out of place to mention that the then law minister, Veerappa Moily, did table before Parliament the Constitution (114th Amendment) Bill, 2010, which sought to increase the retirement age of high court judges (albeit for different reasons), but the bill could not be proceeded with.

Next, the Constitution should be amended to provide for a total restriction on judges of constitutional courts from accepting post-retirement government jobs. Articles 148 and 319 of the Constitution already contain such restrictions for the Comptroller and Auditor General and the Chairperson of UPSC, respectively. MC Setalvad, who headed Independent India’s first Law Commission, suggested this as early as in 1958.

Alternatively, there could be a provision for a “cooling-off” period of at least three years between retirement and acceptance of post-retirement jobs to allow for appointment of retired judges to those tribunals and commissions that demand considerable judicial experience.

This three-year cooling-off period, coupled with delayed retirement, would prevent sitting judges from giving serious thoughts in “judicial afternoons and evenings” (as Justice VR Krishna Iyer would like to describe it) about their post-retirement career prospects. Perhaps, this would also encourage judges to take up pro bono work after retirement, including taking up teaching assignments in law universities.

The problem with post-retirement jobs is also structural in nature. Currently, many legislations require that former Supreme Court judges head tribunals and commissions. And such tribunals and commissions have mushroomed in recent years. Perhaps, it is time to revisit some of these legislations and explore the possibility of appointing experts from outside the judiciary. To foster public trust in the system, a committee headed by a former Supreme Court Judge could be set up to manage these appointments.

Over twenty years ago, in May 1997, the Supreme Court of India in its Full Court adopted a 16-point charter entitled “Restatement of Values of Judicial Life”. The document needs to be revisited to provide for detailed principles and guidance for judges to follow, including a resolution that it would be unethical and immoral for judges to discuss post-retirement career prospects until retirement.

Judicial independence is a jewel of our rule of law, to borrow the phrase of noted American jurist and lawyer, William Rehnquist. Our constitutional courts can never be strong, fair and independent if the government of the day could influence their judgments, for better or worse. In the end, the biggest casualty will be rule of law and people’s faith in it.

The author is a lawyer and academic. He tweets @ashish_nujs