Why India needs urgent judicial reforms
The recent debate on post-retirement appointments of judges has raised many questions.
In his noted work Noctes Atticae, Latin author Aulus Gellius observed “Barba non facit philosophum”, meaning “A beard does not make one [a] philosopher”. Similarly, it appears that the oath taken by government office bearers in India doesn’t constitute them to be responsible enough towards their constitutional duties.
Kerala High Court lawyer Manu Sebastian’s questions on the appointments of three judges have led to a heated debate in the country’s law corridors. He raises eyebrows at the appointment of Justice AK Goel as chairman of National Green Tribunal on the same day of his retirement as a Supreme Court judge. Similarly, he questions the appointment of Justice RK Agrawal as chairman of the National Consumer Redressal Commission within a few weeks after his retirement from the Supreme Court, and Justice Antony Dominic’s appointment as chairman of the State Human Rights Commission by the Kerala Government within a week of his retirement.
An observer can’t be faulted for doubting the presence of bias in the judicial process leading to their judgments, in the light of the immediate post-retirement assignments given to them by the incumbent government. Sebastian’s observation is a strong argument contributing to the debate on immediate reforms required in the Indian judiciary.
Lawyer’s debriefs also pinpoint the stark hypocrisy reflected by questioned authorities. This can especially be seen in the context of what happened on May 7, 2018, when a bench headed by Justice AK Goel quoted and broadly approved the amicus report in Rojer Mathew v. South Indian Bank Ltd:
“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.”
In addition, Finance Minister Arun Jaitley observed back in 2012 that judges’ verdicts are influenced by post-retirement offers. He said, “Pre-retirement judgments are influenced by a desire for a post-retirement job…My suggestion is that for two years after retirement, there should be a gap (before appointment), because otherwise, the government can directly or indirectly influence the courts and the dream to have an independent, impartial and fair judiciary in the country would never actualise.”
Conversely (and ironically), the very party and its torchbearers which once raised concerns on this nexus appear to be flipping sides after being voted to power. Jaitley had, in the same statements, supported the creation of a National Judicial Commission as a body of representatives from the judiciary, government and civil society to look after matters related to appointments and complaints against judges. Contrary to this, we see Centre pulling out of drafting procedure on the National Judicial Appointments Commission. Former CJI P Sathasivam—whose judgment squashed the second FIR against Bharatiya Janata Party president Amit Shah in the Tulsiram Prajapati case—was also appointed as Governor of Kerala post-retirement by the very same government.
I admire Manu Sebastian for his opening argument on this important matter, which was never vigorously debated earlier, but I think the topic needs a neutral assessment. Sebastian courageously puts forward allegations of bias, but they remained limited to the BJP. On this, I agree with Supreme Court lawyer Santhosh Krishnan that Sebastian’s argument is one of expedience rather than accuracy, but it doesn’t completely invalidate Sebastian’s allegations.
Sebastian has somewhat exaggerated the post-retirement appointment of judges, which Santhosh Krishnan effectively argues. P Sathasivam’s appointment as governor is nothing new. As Krishnan quoted, a story in The Telegraph explains the first episode of a Supreme Court judge being made a governor is that of Justice Fathima Beevi, who was appointed Governor of Tamil Nadu in 1997.
Also, as the story says, “Earlier, in 1959, Bombay High Court Chief Justice MC Chagla resigned from office to become the ambassador to the US. In 1968, sitting Chief Justice of India Subba Rao resigned to contest the election to the office of the President but lost. In 1970, retired Chief Justice of India M Hidayatullah contested for the office of Vice-President and won. In 1973, Justice KS Hegde resigned as a judge of the Supreme Court, got elected as a member of the Lok Sabha and became its Speaker in 1977. In 1988, former Chief Justice of India Ranganath Mishra was appointed a Rajya Sabha MP by the Congress.”
Still after these whole nine yards, it becomes important to listen to what former Chief Justice of India RM Lodha said, while affirming clearly that he would not accept any post-retirement job: “There should be a cooling off period of two years before retired members of the higher judiciary take up any constitutional post or government assignment.”
According to the 2014 report in India Today, Justice Lodha “twice warned the NDA government against interfering with the independence of the judiciary—for rejecting the recommendation of the collegium led by him to elevate former Solicitor General Gopal Subramanium as a judge of the Supreme Court and for passing the judicial appointments Bill despite stiff opposition from the judiciary.”
Opposing the Bill, he said, “I still maintain the executive’s ability is limited and judges are best equipped to adjudge the suitability of a person or candidate from the bar as judges, as we know about their court craft, behaviour, skill, legal knowledge and other aspects.”
Justice Lodha is not the only one to decline a post-retirement job. Former Chief Justices of India SH Kapadia and TS Thakur, and Justices J Chelameswar and Kurian Joseph, followed suit, though their refusal was enough to catalyse the debate all over again.
As far as independence of Indian judiciary is interpreted on planks of recent developments, SC Lawyer Indu Malhotra’s appointment as an SC Judge while turning down the elevation of Chief Justice of Uttarakhand HC, KM Joseph, to SC is not a very difficult question to answer. Unsurprisingly, it was Justice KM Joseph who had once overturned the imposition of President’s Rule in Uttarakhand against the BJP’s wish.
Former CJI SH Kapadia’s conflict-of-interest controversy is important to revisit as far as transparency in the judiciary is concerned. On March 19, 2007, a bench headed by Justice Kapadia upheld an appeal filed by Sterlite against Chennai’s commissioner of customs. Justice Kapadia disclosed his shares in Vedanta’s Sterlite towards the end of proceedings, which surely compiled a doubtable case of conflict-of-interest.
Arundhati Roy mentioned the episode in an essay:
“What are we to make of the fact that, when activists from Orissa filed a case against Vedanta in the Supreme Court…Justice Kapadia suggested that Vedanta be substituted with Sterlite, a sister company of the same group? He then blithely announced in an open court that he too had shares in Sterlite. He gave forest clearance to Sterlite to go ahead with the mining despite the fact that the Supreme Court’s own expert committee had explicitly said that permission should be denied and that mining would ruin the forests, water sources, environment and the lives and livelihoods of the thousands of tribals living there. Justice Kapadia gave this clearance without rebutting the report of the Supreme Court’s own committee.”
It is the same Sterlite subsidiary of Vedanta which, a decade after of Justice Kapadia’s ruling, resulted in the Thoothukudi massacre.
The current discourse is not about questioning the merits of judgments delivered by judges who were appointed to the top court, or who took up government jobs post-retirement. But it certainly questions their sacrosanctity. No resolution—by formulating a transparent, independent commission—appears to be sought. If it remains the same, the crisis will remain intact.