New Delhi: “Competitive impropriety”, “wrong precedent”, “improper shift” — the nomination of Justice Ranjan Gogoi to the Rajya Sabha in March last year, just four months after he retired as Chief Justice of India, raised several eyebrows.
As a judge, Gogoi had presided over benches that handled several important cases, including the Ramjanmabhoomi-Babri Masjid land dispute and the review petitions filed to seek an investigation into India’s purchase of 36 Rafale fighter jets from France.
Gogoi’s appointment, however, is not the lone instance of Supreme Court judges taking up other jobs or assignments after retirement.
An analysis of Supreme Court judges who have retired since 1999 — 103 in total (one of them, Justice M. Srinivasan, 63, passed away while in office, in February 2000) — reveals that at least 71 per cent (73 out of 103) took up some sort of assignment after demitting office.
These assignments included appointments to tribunals, human rights commissions, government-appointed ad hoc commissions, court-appointed committees, water tribunals, and as lokayuktas or state-level anti-corruption officials.
As many as 63 per cent (65 out of 103) took up an assignment within three years of retiring, with some assuming multiple positions one after the other. For this report, ThePrint has only considered the first post-retirement assignment taken up by these judges.
The first post-retirement assignment of at least 60 per cent (62 out of 103) of the judges involved direct appointment by the government, or the government having a say in appointments.
These include appointments to tribunals and bodies such as the National Consumer Disputes Redressal Forum (NCDRC), the law commission, and human rights commissions, besides ad hoc commissions and committees, as well as posts like lokayukta.
Out of the 62 judges, two — Justices P.P. Naolekar and B. Sudershan Reddy — were appointed as lokayuktas right after their retirement. For five others — Justices Shivraj V. Patil, N. Santosh Hegde, Lokeshwar Singh Panta, Cyriac Joseph and P.C. Ghose — lokpal/lokayukta posts came after other post-retirement posts.
Then there’s former CJI Justice P. Sathasivam, who was appointed Governor of Kerala four months after he retired in 2014.
To be sure, there is no provision in law that bars judges from taking up post-retirement assignments, and neither is there a cooling-off period. However, critics see immediate appointments after retirement as constituting a potential conflict of interest, pointing out that they create questions about judgments issued by judges while in service.
Supporters of the idea, meanwhile, point out that certain subjects require handling by experts well-versed in the intricacies of Indian law, which makes judges indispensable to some appointments.
Many former judges also emphasise the need to make a distinction between assignments allotted by courts and those involving the government, noting that the latter involves salary and perks paid by the government.
When asked about the propriety of judges taking up post-retirement assignments, former Supreme Court judge Justice M.B. Lokur said the issue requires “detailed discussions and a policy decision that applies not only to judges but several other functionaries as well, such as election commissioners, vigilance commissioners, government servants etc”.
At the end of the day, he said, it is a matter to be decided by each individual judge.
“Speaking for myself, I belong to an old school and find it almost impossible to say ‘no’ to a suggestion, let alone a request, from the Chief Justice of India,” he said, talking about invitations to join commissions set up by the Supreme Court to take up different matters.
“But I would draw the line and, most respectfully, say ‘no’ to an appointment to a tribunal or commission,” he added.
‘Who will run the tribunals?’
One of the significant reasons for most post-retirement assignments is because the law calls for the appointment of retired judges to run tribunals, among several other bodies.
Justice Lokur pointed out that several laws require positions like those in the Central Administrative Tribunal (CAT), the Armed Forces Tribunal (AFT), the National Green Tribunal (NGT), the National Human Rights Commission (NHRC) etc to be filled up by retired judges or retired government servants.
“If they are not appointed to these positions, the laws will collapse,” he said.
According to ThePrint’s analysis, out of the 103 judges who have retired since 1999, 16 were appointed as members or chairpersons of the NHRC or state human rights commissions right after their tenure in the apex court ended.
This includes Justices Sujata V. Manohar, P.C. Ghose, Cyriac Joseph, A.S. Anand, S. Rajendra Babu, K.G. Balakrishnan, G.P. Mathur, Shivraj V. Patil, H.L. Dattu and P.C. Pant.
Apart from these, four judges were appointed as presidents of the NCDRC within a year of retiring. A fifth judge, Justice D.K. Jain, also took charge as NCDRC president within a year of retiring, but it was after a short stint as Law Commission of India (LCI) chairman.
The LCI has been the first post-retirement assignment for three retired judges since 1999. The Competition Appellate Tribunal (CAT) and the Authority for Advance Rulings (AAR) were also the first post-retirement assignments for three judges each. For five judges, meanwhile, it was the Telecom Disputes Settlement and Appellate Tribunal (TDSAT).
Justice B.N. Kirpal was appointed as head of the first National Forest Commission (NFC) in 2002 — an announcement that came a month after his retirement. Justice A.K. Mathur was the first chairperson of the AFT — a post he took over less than a month after he retired in 2008.
Justice B.N. Srikrishna, who retired in May 2006, was immediately asked by the then Union Finance Minister P. Chidambaram to head the 6th Pay Commission.
Justice S.J. Mukhopadhaya served as chairman of the National Company Law Appellate Tribunal (NCLAT), and two other judges — Justices Markandey Katju and C.K. Prasad — as Press Council of India (PCI) chairpersons, after retirement.
Five judges — Justices Brijesh Kumar, B.S. Chauhan, J.M. Panchal, Mukundakam Sharma and B.N. Agrawal — headed water disputes tribunals to settle rows between different states on issues such as the use, distribution or control of waters of any inter-state river or river valley.
Senior advocate Gopal Sankaranarayanan said it is the retirement age of judges that is partly to blame for them taking up post-retirement assignments.
“The problem is, they are retiring at an age when many people are still being able to continue in the profession. The retirement age of 65 is a little modest. It needs to be increased to 70 or so,” he added.
No cooling-off period
The arguments against judges accepting post-retirement assignments fit in a spectrum of opinions, ranging from judges being barred from taking up any assignment whatsoever after retiring, to allowing them to take one up but only after a cooling-off period, or a break following their retirement.
Pointing to the lack of a cooling-off period in laws requiring such appointments, Sankaranarayanan said, “You need to have a cooling-off period to try and avert issues of conflict if they arise. So, two to three years is a decent cooling-off period.
“It’s too often otherwise, to draw the link between a judgment given by a judge that is favourable to the government and the judge’s subsequent appointment. And there is always a doubt as to why it was done,” Sankaranarayanan added.
None of the laws in India that concern the appointment of retired judges to different posts lays down such a cooling-off period. So, for instance, Justice Swatanter Kumar was appointed NGT chairman (2012 to 2017) while he was still in service, with around 12 days left for his retirement, and resigned to take up the new post, and Justice A.K. Goel was appointed NGT chairman on the same day as his retirement in July 2018.
Justice Lokeshwar Singh Panta had a 14-month stint between 2010 and 2011 as NGT chairperson, before he was appointed as Himachal Pradesh lokayukta.
Senior advocate K.T.S. Tulsi agreed with the need to have a cooling-off period after judges retire.
“Even though it may be necessary to have judicially qualified people for adjudication of certain classes of cases, there has to be a cooling-off period of at least two years,” he said.
“There may be no impact on their judgments while they were judges, but it does seem so to some people and they interpret their judgments in the context of the job that is offered to them and accepted by them immediately after retirement,” he added.
However, former Chief Justice of India Justice K.G. Balakrishnan, who was appointed as NHRC chairman less than a month after his retirement, does not believe in the need for a cooling-off period.
“Some tribunals can only be manned by a judge, they require legal knowledge and legal expertise,” he said.
“Where legal expertise and knowledge is required, there is nothing wrong in appointing judges of the higher courts immediately after retirement,” he added.
Justice Lokur said it’s “nice to talk about a cooling-off period, but what happens in the interregnum?”
“Can they take up a private job or a consultancy with a national or multinational corporation? Should their expertise or specialisation be wasted for the sake of a cooling-off period?” he added.
‘A national debate needed’
From Union minister Piyush Goyal to his late cabinet colleague late Arun Jaitley, several politicians have expressed unease about growing opportunities for judicial post-retirement appointments in Indian laws.
The first Law Commission of India had, in its 14th report, unanimously recommended in 1958 that judges should not accept post-retirement jobs from the government, highlighting the potential effect on the independence of the judiciary.
Ironically, the then Chief Justice of the Bombay High Court, Justice M.C. Chagla, who was part of the first Law Commission, accepted a government appointment to serve as Indian Ambassador to the US (1958-61) and later as Indian High Commissioner to the UK (1962-1963). His appointment as US ambassador came within around two months of his retirement on 26 October 1958.
He also went on to serve as Education Minister (1963-66) and Minister for External Affairs (1966-67).
Former CJI R.M. Lodha said that, before his retirement, he had mooted a radical proposal to then Prime Minister Manmohan Singh to address potential concerns about political influence on the judiciary.
“I had floated a proposal that so far as judges in superannuation are concerned, three months before retirement, they should be given an option, asking them whether they would want to receive a pension or a post-retirement assignment,” he added.
If the judges opt for pension, then an amount equal to their last-drawn salary should be given to them, but no post-retirement assignment, he said.
“But if somebody is interested in a post-retirement assignment, then a committee headed by the CJI or his nominee should be constituted, and whenever a vacancy occurs, the government should call for a name from that committee,” he added.
Senior Congress leader and former Union Law Minister M. Veerappa Moily is still of the opinion that judges should not take up any assignment before a cooling-off period.
“A national debate has to take place on the judges taking up post-retirement appointments without taking a cooling-off period,” he said.
“Wherever it is not constitutionally required, the government should also make it a point not to appoint any judges for any assignment to commissions or tribunals. Any post-retirement benefits will only shake up the very foundation of the integrity of the judges,” he added.
‘Qualitative and quantitative difference between appointments’
Out of the 103 judges who have retired since 1999, eight were appointed to various ad hoc committees and commissions set up by the government.
For instance, in May 2002, two years after his retirement, Justice G.T. Nanavati was appointed by the Gujarat government to investigate the Godhra train carnage that year and the communal violence that followed.
At least 10 judges were appointed by the Supreme Court and high courts to different ad hoc commissions and committees created for a specific purpose.
Among the most high-profile of these post-retirement assignments was handed over to Justices R.M. Lodha, R.V. Raveendran and Ashok Bhan, who attempted to reform Indian cricket’s apex administration body, the Board of Control for Cricket in India (BCCI).
Justice Lodha retired in September 2014, Justice Raveendran in October 2011 and Justice Bhan in October 2008. The committee was appointed by the Supreme Court in January 2015.
As for the distinction between such assignments as compared to appointments to tribunals, other permanent bodies and government-appointed ad hoc commissions, Justice Lokur said there is a “qualitative and quantitative difference between different types of appointments/nominations”.
An appointment to a tribunal or a commission is usually made on the administrative recommendation of the Chief Justice of the Supreme Court or high courts. The recommendation or nomination usually comes with a salary and perks paid for by the government, he added.
As for court-appointed committees, he said they are usually made in open court and in the course of judicial proceedings.
“The appointment is sometimes, though not always, without remuneration and perks or they are fixed as part of the court order. Such a committee is appointed usually to assist the court in the case before it,” he said.
Justice Lodha is of the view that court-appointed committees are “no appointments at all”. “They are just tasks given to a particular committee. They don’t carry any benefit or perquisites. The remuneration is fixed by the court or something bare minimum is usually given. They are task-based, not tenure-based,” he said.
Even within the judiciary, voices have emerged against the practice of judges taking up post-retirement jobs. Opponents include Justices J. Chelameswar and Kurian Joseph, two of the four judges who held the unprecedented January 2018 press conference to raise certain concerns about the judiciary during Justice Dipak Misra’s tenure as Chief Justice of India. Both Chelameswar and Joseph retired in 2018.
After his retirement last year, Justice Deepak Gupta said he would not accept any offers from the government. He also said that if he were offered a Rajya Sabha nomination like Justice Gogoi, he would not have accepted it. “Although I think nobody would offer it to me in the first place,” he added.
Several judges, meanwhile, have gone on to become arbitrators. These include Justices Ajay Prakash Misra, S.P. Bharucha, G.B. Patnaik, Doraiswamy Raju, S.N. Variava, B.P. Singh, Kurian Joseph, Dipak Misra, J.S. Khehar, T.S. Thakur, V. Gopala Gowda, S.S. Nijjar, Gyan Sudha Mishra, Altamas Kabir and Deepak Verma.
However, Supreme Court Bar Association (SCBA) president Dushyant Dave said retired judges becoming arbitrators is also “unhealthy”.
“To my mind, even allowing judges of the superior courts to become arbitrators is unhealthy, because many judges have been seen to favour large law firms in expectation of arbitration appointments and, in some cases, judges who decided matters of large corporate houses in their favour, have been appointed as arbitrators,” he added. “This is a very disturbing development.”
Some judges have also taken up international appointments. Justice M.B. Lokur, for example, retired in December 2018 and was appointed to the Supreme Court of Fiji as a judge of its non-resident panel with effect from 21 January 2019, and Justice A.K. Sikri, as an international judge of the Singapore International Commercial Court in August 2019, five months after he retired.
Since April 2012, Justice Dalveer Bhandari has been a judge at the International Court of Justice (ICJ) — a post for which he was nominated by the government while he was still a sitting judge. He resigned to join the ICJ and was re-elected to the court in 2017 after a close race with the British candidate.
Many judges have also pursued personal initiatives in retirement. For instance, former CJI Justice R.C. Lahoti co-founded an anti-corruption organisation called the ‘India Rejuvenation Initiative’ soon after he retired. He also headed a forum called Nyaya Chaupal, aimed at helping with resolution of civil cases such as family feuds, property disputes and those involving neighbours.
The forum was founded in 2018 by RSS affiliate Akhil Bharatiya Adhivakta Parishad (ABAP).
With inputs from Bhadra Sinha and Poojasri Ganesan
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