Amid the debate, a research paper titled ‘Jobs for Justice(s): Corruption in the Supreme Court of India’ first published in December 2017 has resurfaced.
The paper analysed a data on post-retirement appointments of Supreme Court judges and the top court’s case list from 1999 to 2014 to conclude that judges who have authored favourable judgments in important cases are more likely to get prestigious government jobs.
“We find that judges respond to pandering incentives by ruling in favour of the government. Moreover, judges who have authored favourable judgments in important cases are more likely to receive prestigious government jobs,” the paper stated.
“Our analysis suggests that the prospect of being appointed to government positions after retirement could be a way in which the executive exercises control over an otherwise independent judiciary, in countries with judicial term limits,” it added.
The paper was written by Madhav Aney, associate professor at the School of Economics, Singapore Management University, Shubhankar Dam, professor at the University of Portsmouth School of Law, and Giovanni Ko, assistant professor at the Singapore Management University.
How ‘pandering’ occurs
The paper defined “pandering” as being jointly determined by prominence or salience of the case, and whether the judge retires with enough time left in a government’s term to be rewarded with a prestigious job.
It then identified two channels through which pandering occurs.
First, the paper said, pandering occurs through “actively writing favourable judgments” for the government rather than simply sitting on a bench that decides the case.
Secondly, it works through “potentially harmful manipulation of actual decisions in favour of the government”, rather than passive means such as delaying unfavorable decisions or other strategic delays.
Chances up by 15-20%
The paper found that authoring the judgment in one salient case decided in favour of the government increases the chances of getting a post-retirement job by 15 to 20 per cent.
It, therefore, found that authoring judgments in favour of the government is “positively associated” with the likelihood of being appointed to a prestigious post-retirement job.
The paper, however, clarified that it was not identifying the motive of the government but only how these post-retirement jobs are perceived by judges.
“Nonetheless, regardless of whether the government intends to reward judges or whether it simply uses authorship of favourable decisions as a mechanism to identify compliant judges, award of post-SC jobs will have the same effect on judicial behaviour,” it said.