Acts that govern SEBI, NGT and the IRDA among others are designed to ensure post-retirement jobs for former judges and civil servants.
New Delhi: The plum post-retirement job offered by the Modi government to sitting Supreme Court judge A.K. Sikri, whose vote was crucial in deciding the fate of Alok Verma as CBI director, has once again brought to the fore the longstanding debate on post-retirement jobs for judges and civil servants.
Even as public opinion is divided on whether judges and civil servants should hanker after post-retirement jobs, a quick Google search will reveal that almost all of the national commissions and tribunals are manned by either of the two categories.
Consider this: The Central Information Commission, the Election Commission, the Central Vigilance Commission and the Competition Commission of India are all headed by retired All India Service officers.
National tribunals, which are quasi-judicial bodies meant to provide swift justice and take some burden off the judiciary — such as the National Green Tribunal, the Armed Forces Tribunal, the Customs, Excise and Service Tax Appellate Tribunal, the Income Tax Tribunal and the Central Electricity Regulatory Commission — are all headed by former judges of the Supreme Court or the high courts. The same is true for the Law Commission and the National Human Rights Commission (NHRC).
To be sure, it is not a matter of coincidence that all of India’s national panels and tribunals are headed by former civil servants or judges.
Not a coincidence
A look at the various legislations under which all of these bodies are constituted reveals that they are all designed in a way to ensure that only those who have served in the government or the judiciary qualify to head them.
The Acts under which the Securities and Exchange Board of India (SEBI), NGT, the Insurance Regulatory and Development Authority, the Telecom Disputes Settlement and Appellate Tribunal, the Cyber Appellate Tribunal and the National Company Law Board, among several others, are constituted clearly specify that only civil servants or former judges of the Supreme Court or high courts could head them.
The argument in favour of the quasi-judicial bodies being headed by former judges is that people who have served in the highest echelons of the judiciary are best equipped to adjudicate on matters involving legal expertise.
“Since these tribunals are quasi-judicial bodies, they require a judicial element in their functioning…,” said former Delhi High Court Chief Justice Bashir Khan said.
“But the problem is that these positions have now become a trade-off between sitting judges and the government,” he added.
However, to block these positions for everyone outside the judiciary may be a problem, said civil rights activist Anjali Bhardwaj.
“It is true that over a period of time, judges and bureaucrats gain invaluable experience, which should be used… But if you are saying a certain tribunal cannot be headed by anybody but a former judge, you should ensure proper justification within the law,” she added.
“This can be achieved by ensuring that there is a proper pre-legislative consultation at the time of the framing of the law so that it can be questioned why a certain post is being blocked for a judge or a bureaucrat.”
Most of the commissions and tribunals, however, give no justification for reserving top posts for judges. The Acts that govern them simply state that the chairperson or president of the commission shall be a person who is or has been a judge of the Supreme Court or high courts.
Despite room for specialists, officials maintain stranglehold
Even in cases where the law permits the appointment of specialists or domain experts such as lawyers, academicians etc. to head national panels, the practice is to only exclusively appoint former bureaucrats.
While the Right to Information Act (RTI Act) allows people from an array of fields to become central information commissioners, the government typically only reserves them for career bureaucrats. All of the eight information commissioners, for instance, are former bureaucrats.
The Union Public Service Commission (UPSC), which supervises all matters relating to recruitment to civil services and posts, has been headed by only two academicians in the last 10 years. All other chairpersons have been retired bureaucrats.
Similarly, while the rules for the Telecom Regulatory Authority of India (TRAI), Competition Commission of India and the Election Commission do not explicitly state that they have to only be headed by former judges or bureaucrats, that continues to be the practice.
Necessary expertise or post-retirement bliss?
Former secretary to the government of India, Anil Swarup, who himself vowed to not apply for a post-retirement job, says that as people with expertise to manage human resources, IAS officers are well-equipped to head various commissions of the government.
“There is nothing wrong with them being appointed,” he said. “But the selection process needs to be transparent and one that evokes public interest.
“Even now, there are so many issues about people who are appointed… Just think about what would happen if non-bureaucrats are appointed,” he added. “They will just end up appointing anyone who they want out of nowhere.”
Bhardwaj agreed with him on the need for transparency in the selection process. For example, she said, if a post is technically open for a non-bureaucrat or judge, the information about who applied, who was shortlisted and who shortlisted, the criteria, etc. should all be in the public domain.
“If there is that kind of transparency, at least we can question that ‘these many academicians applied, yet you only chose a bureaucrat, so tell us why’,” she said.
This is an updated version of the report.