Retired judge Adarsh Goel’s new job goes against the principle Arun Jaitley floated

The Supreme Court of India, New Delhi | PTI

In 2012, Arun Jaitley had said that pre-retirement judgments were influenced by a desire for a post-retirement job.

The day he was delivering his post-retirement farewell speech on the lawns of the Supreme Court of India, there was already a job in Justice Adarsh Kumar Goel’s pocket.

In his speech, Goel defended his controversial judgment diluting the SC/ST (Prevention of Atrocities) Act, and even compared himself to another judge from Punjab (Justice H.R. Khanna) who, during the Emergency, had given an interpretation that “there can be no arbitrary action, nobody is arrested”.

Within hours of the speech, news came that Goel had been appointed the chairman of the National Green Tribunal (NGT).

For several months, speculation was rife that the post, which had fallen vacant December last year, was being kept so till his retirement, and his eventual appointment proved that, for once, the rumours were true.

One does not grudge Goel his post-retirement job. Of course, tribunals and other government bodies need retired judges. This practice will continue unless some choose not to accept any post-retirement jobs.

But, the issue becomes problematic if such jobs are seen as favours from the government.

Isn’t it too much of a coincidence that hours after Goel was appointed the chairman of the NGT, his son Nikhil Goel was appointed additional advocate general by the BJP government in Haryana?

In 2012, I had done an exercise for my former newspaper, The Indian Express, to analyse how many Supreme Court judges who had retired since January 2008 had landed government jobs. Of the 21 judges who had retired till the time I filed my report, 18 had been given post-retirement jobs.

Of the three who didn’t, two had refused to accept any post-retirement jobs, while one was still waiting for a good post.

The attorney general at that time, Goolam Vahanvati, told me that he had personally gone to Justice C.K. Thakker twice to request him to accept some important posts. He had politely refused.

Before accepting post-retirement jobs, judges would do well to remember what one of their own — Justice Venkate Gopala Gowda — had to say on this issue.

“It is rampant. It amounts to betraying the oath of your office. A judge should not keep an eye on a post after he retires. It means he is dishonest. After you retire, you get a pension that is sufficient. How many people don’t get three square meals a day? 74 per cent of the people earn less than Rs 5,000 a month and I get a pension of Rs 70,000 a month,” he said in an interview to Bar and Bench.

More recently, Justice Jasti Chelameswar announced months before his retirement that he would not accept any post-retirement job.

Incidentally, in one of his recent judgments, Justice Goel had also quoted the submissions of a senior advocate on this issue, “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.”

I recall a very interesting conversation I had with a senior Supreme Court judge (now retired) who called me after I wrote — again in The Indian Express — that Justice H.L. Dattu, the CJI back then, would be appointed the next National Human Rights Commission (NHRC) chief. This judge was worried that I was trying to queer the pitch for Justice Dattu.

On 4 December 2015, two days after his retirement as the CJI, Justice Dattu met me at his house, showed me empty rooms, bereft of any furniture except one sofa set. He said he was going back to Karnataka and had no plans to return to Delhi.

But two months later, he was back in Delhi, this time as the chairman of the NHRC, a post he continues to hold to date.

In recent history, former CJI S.H. Kapadia and Tirath Singh Thakur have spoken about the need for some cooling-off period before retired judges can accept government jobs.

The debate isn’t new. In 1959, the great jurist M.C. Setalvad, chairman of the first Law Commission of India, had red-flagged this issue in a report.

The commission’s 14th report on ‘Reforms of the Judicial Administration’ said: “There can be no doubt that it is clearly undesirable that Supreme Court judges should look forward to other government employment after their retirement. The government is a party in a large number of cases in the highest court and the average citizen may well get the impression that a judge who might look forward to being employed by the government after his retirement does not bring to bear on his work that detachment of outlook which is expected of a judge in cases in which the government is a party… We are clearly of the view that the practice has a tendency to affect the independence of judges and should be discontinued.”

Among front-line politicians, union minister Arun Jaitley, when he was the leader of the opposition in the Rajya Sabha, had supported a cooling-off period too.

In 2012, addressing a party conference, he had said: “Pre-retirement judgments are influenced by a desire for a post-retirement job.”

The clamour for post-retirement jobs, he asserted, “is adversely affecting the impartiality of the judiciary of the country and time has come that it should come to an end”. However, once the BJP came to power, like many other pre-poll assertions, this was also conveniently forgotten.

Goel’s appointment in the NGT, and those of several others before him, shows that Jaitley’s own government, headed by Prime Minister Narendra Modi, doesn’t appear to agree.