The appointment of judges to new jobs as soon as they retire compromises the independence of the judiciary, Arun Jaitley had once said. Yet his recommendation of a two-year cooling off period finds no takers even in his own government.
“Pre-retirement judgments are influenced by a desire for a post-retirement job … My suggestion is that for two years after retirement, there should be a gap (before appointment), because otherwise the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise.”
– Arun Jaitley as Leader of the Opposition in 2012.
Three recent appointments have reopened the debate on the propriety of judges accepting post-retirement jobs from the government.
On July 6, Justice A.K Goel was appointed chairman of National Green Tribunal on the same day of his retirement as Supreme Court judge. Justice R.K Agrawal was appointed as the chairman of the National Consumer Redressal Commission (NCDRC) during last week of May, within a few weeks after his retirement from Supreme Court. Justice Antony Dominic was appointed chairman of the State Human Rights Commission by the Kerala government, within a week of his retirement as chief justice of the Kerala high court in the last week of May.
These appointments, which took place within a short span of the retirements of the three judges, have raised quite a few eyebrows. The immediate appointments suggest that decisions regarding their post-retirement assignments had already been taken, at least in principle, by the respective governments even during the tenure of the judges. Even before their retirements, rumours were rife amongst the members of the bar regarding the finalisation of their post-retirement posts.
This certainly casts a cloud over judicial decisions rendered during their tenure in cases involving stakes of the respective governments, as the executive has a major say in appointments to quasi-judicial bodies.
Irony stares stark at Justice A.K Goel – who agreed to his appointment by the Central government as NGT chairman on the very same day of his retirement – as the bench headed by him was dealing with the issue of restructuring of tribunals in the case Rojer Mathew v. South Indian Bank Ltd. There, the amicus curiae senior advocate, Arvind P. Datar had suggested as follows:
“The Tribunals should not be heaven for retired persons and appointment process should not result in decisions being influenced if the Government itself is a litigant and appointment authority at the same time. There should be restriction on acceptance of any employment after retirement ”
The bench said that they ‘broadly accepted’ the concept note , while dealing with the need to restructure tribunal system.
The debate gets weighty on noting that the judges had dealt with sensitive issues during the twilight of their tenure. Justice R.K Agrawal headed the bench which dismissed the petition questioning the Centre’s appointment of R.K Asthana as CBI special director, and also the petition seeking investigation into corruption allegations in the Prasad Education Trust cases which was decided by the bench of the Chief Justice of India. Justice R.K Agrawal was also part of the specially constituted bench which annulled the order of the bench of Justice Chelameswar which had ordered special investigation in the medical college bribery case. Therefore, Justice Agrawal had dealt with cases involving stakes of the Central government and the CJI. The appointment of chairman of the NCRDRC is made by the Central government on consultation with the CJI. Against that backdrop, a dispassionate observer cannot be faulted for wondering about the robustness of these judgments in the light of the immediate post-retirement assignment given to the judge.
As regards Justice Antony Dominic, as the chief justice of the Kerala high court, he happened to deal with cases which had potential to politically affect the ruling party in Kerala.
This is not to suggest, even remotely, that their judgements are wrong or biased. The only endeavour is to underline the fact that immediate post-retirement appointments of the judges create a cloud over the sanctity of those judgements, irrespective of their merits. As it is well settled, actual existence of bias is not required to vitiate the sanctity of the judicial process; the perception of bias, founded on grounds which are not too far-fetched and hypothetical, taints the judicial process. The judicially accepted test of bias is the reasonable likelihood of bias, and not the actual existence of bias. The significance of the oft-quoted adage ‘justice should not only be done, but also seem to be done’ gets more profound in this context.
Similar questions arose when former Chief Justice of India P. Sathasivam was appointed as governor of Kerala in September 2014. It had led to a chorus of criticism that he was being rewarded for favouring the ruling party. Justice Sathasivam however denied that his appointment had anything to do with his judgment quashing the second FIR against BJP President Amit Shah in the Tulsiram Prajapati case. As governor of Kerala, Justice Sathasivam had to negotiate embarrassing situations, when he had to sign an ordinance mooted by the government to get over a Supreme Court decision, and when that ordinance was later stayed by the Supreme Court.
Judges accepting jobs under the executive certainly creates situations of conflicts of interest. It tends to undermine public faith in judicial independence. In the recent ‘master of the roster case’ the Supreme Court reiterated that public confidence was the greatest asset of judiciary, and observed as follows:-
“The faith of the people is the bed-rock on which the edifice of judicial review and efficacy of the adjudication are founded. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary.”
Immediate acceptance of post-retirement assignments certainly creates a dent on public confidence in judicial independence. Justice Chelameswar declared that he will not take up any post-retirement assignment given by the government. Justice Kurian Joseph has also made open his reluctance to accept such jobs. According to them, the judiciary and executive should remain mutual watchdogs rather than mutual admirers, and post retirement offers can lead to erosion of judicial independence.
Justice B. Kemal Pasha, who retired as a judge of the Kerala high court earlier this year and raised dust with his controversial remarks in his farewell speech, spoke against this practise as well:
“When a judge is expecting a post-retirement job from the government, normally he will be in a position not to invite displeasure from the government at least in the year of his retirement. There is a common complaint that such judges do not dare to invite displeasure from the government by expecting post-retirement jobs”
He also recalled the words of Justice S.H. Kapadia and Justice T.S. Thakur that no judge should accept any salaried job under any government at least for a cooling period of three years from his or her retirement.
At the same time, to squander the wealth of experience and insight of retired judges is also not ideal. There has to be a mechanism to channelise the potential of retired judges back into the system. At present, most statutory commissions/tribunals require to be headed by retired judges of the Supreme Court or high courts.
In this regard, the suggestion regarding a “cooling off” period for appointment of retired judges as mooted by former CJIs Kapadia, Lodha and Thakur assumes relevance. Justice Lodha had stated that he would not take any post-retirement benefit for a period of two years after retirement.
Arun Jaitley, in his capacity as leader of the opposition in the Rajya Sabha in 2012, had advocated a cooling off period for judges, saying that “pre-retirement judgments are influenced by a desire for a post-retirement job”:
“My suggestion is that for two years after retirement, there should be a gap (before appointment), because otherwise the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise.”
But irony couldn’t get starker when Jaitley’s party, after assuming power at the Centre, enthusiastically offered immediate post-retirement offers to Justice P. Sathasivam, Justice Aggarwal and Justice Goel. Also, the present government has included a lot of provisions in the Finance Act, 2017, which cut at the root of judicial independence. These provisions have the potential to affect the independent working of several quasi-judicial bodies like the NGT, NCDRC etc. They amend the provisions of parent Acts of various Tribunals, and delegate the power to appoint and prescribe qualifications to the Central government through rule-making. Thus, the composition and working of Tribunals can be regulated through executive rule making.
These provisions have been challenged in the Supreme Court on the ground that they infringe upon the doctrine of separation of powers and undermine the independence and autonomous functioning of bodies. The Madras high court, dealing with the issue, ruled that all appointments made to tribunals as per the 2017 amendment will be subject to the final result of petitions challenging the amendments.
In Madras Bar Association v. Union of India, the constitution bench of the Supreme Court had held the National Tax Tribunal to be unconstitutional, as its composition impinged on judicial independence and separation of powers, which were held to be basic features of the Constitution. “It is not possible to accept that a party to a litigation, can participate in the selection process, whereby the Chairperson and Members of the adjudicatory body are selected”, the Court had observed in that case.
It is hoped that these observations ring a bell with all stakeholders. To say the least, the swift jump from one branch of government to another does not look graceful.
Manu Sebastian is a lawyer practicing at the Kerala high court.
This is a slightly edited version of an article which was first published in LiveLaw