Post-retirement jobs: Judiciary’s bane

Judges manning the courts are custodians of the justice-delivery system. This system thrives and survives on public trust. For this reason, disputes engaging complex political, religious, and ethical dimensions find a quietus in courts. The most visible example in recent times was the settlement of the Ayodhya land dispute which brokered peace between two religious communities in India vying for a common piece of land.

This verdict was given by a bench of five judges on November 9, 2019. The then Chief Justice of India (CJI) Ranjan Gogoi presided over the bench. This verdict bought peace between the Hindu and Muslim communities. The disputed area went to the majority Hindus while the minority Muslims got an alternate land of five acres. The nation was on the boil as the ruling party at the Centre – the Bhartiya Janata Party (BJP) had made it their poll plank to construct a temple at this very site dedicated to Lord Ram, one of the Hindu Gods. The Court unanimously held the land to be Lord Ram’s birthplace. A mosque at this site had been brought down by Hindu karsevaks on December 6, 1992. Despite the heartburn, the verdict witnessed no communal backlash.

Four months later, former CJI Gogoi, one of the architects of the Ayodhya verdict, has been nominated by Indian President Ram Nath Kovind as a Member of Rajya Sabha. The choice of the President is governed by the ruling political dispensation at the Centre. In this case, it is the BJP which benefitted the most from the Ayodhya verdict. Also, Gogoi was part of the bench that gave a clean chit to the same BJP government led by Prime Minister Narendra Modi in a multi-million dollar defence purchase deal. The clamour is growing for the ex-CJI to reject the offer. But Gogoi has decided to take oath.

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Gogoi knows that judges in the past, even CJIs, entered Parliament and accepted government posts. If Gogoi chooses to walk the beaten track, there is a disturbing history that should dissuade him from doing so.

Justice (Retd) Bahrul Islam, served at the Supreme Court from 1980 to 1983. Six weeks remaining for his retirement, he resigned and got Congress ticket to Lok Sabha from Barpeta (Assam). A month before his resignation, he absolved chief minister of Bihar, Jagannath Mishra, a tall Congress leader, in a case of forgery and criminal misconduct.

Justice (Retd) Ranga Nath Mishra retired as CJI in 1991. In 1984, he headed a judicial commission to probe allegations whether the Delhi Sikh riots was orchestrated by the ruling Congress party and its leaders. The riots were in the aftermath of former Prime Minister Indira Gandhi’s assassination. Mishra’s report blamed the police but absolved the Congress party of any complicity.

Within two years of his retirement, he became Chairman of India’s apex human rights body in October 1993. In 1998, Congress Party nominated him to the Rajya Sabha.

A similar charge of quid pro quo was levelled against former CJI P Sathasivam. Soon after his retirement in April 2014, he became Governor of Kerala. A year ago, he favoured Amit Shah, the present Union Home Minister, who then faced a fake encounter case as the Home Minister of Gujarat. Sathasivam presided a bench that closed probe against Shah in the alleged fake encounter killing of one Tulsiram Prajapati. The judge responded to the criticism claiming any judge in his position would have ruled the same.

There are other precedents too of judges accepting government posts. Judges after retirement are faced with a strong lure for political and constitutional offices. Many judges have hobnobbed with governments of the day for such posts. While nothing in law prevents judges from becoming Members of Parliament, it unnecessarily makes their decisions suspicious. This shakes public faith in judicial independence and casts doubts over their integrity. In England, there exists a bar upon retired judges to join the House of Commons. In India, this discretion is left to the judges. We do not need to control our judges.

Their independence and impartiality have remained the hallmarks of their decision-making that has stood the test of time. For this reason, even the Constitution makers did not think it necessary to bar judges from holding post-retirement executive posts. But the time seems to be ripe for a rethink. After all, the judiciary is the last bastion for citizens to expect justice. And if public trust faulters, it will be hard for the judiciary to restore its institutional integrity.

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)