Judges and the lure of ‘political’ jobs

Context:

• Within a month of retiring from the Supreme Court of India, Justice S. Abdul Nazeer was appointed Governor of Andhra Pradesh.
• In the tenure of the present government since 2014, he is the third Supreme Court judge who has received a high-profile political appointment soon after retirement, the other two being Justice P. Sathasivam (who was appointed Governor of Kerala), and Justice Ranjan P. Gogoi (who was appointed member of the Rajya Sabha).
• These appointments are all signaling on the part of the government, letting the members of the higher judiciary know that they will be suitably rewarded if they issue favorable decisions.
• Dangling such a proverbial carrot is akin to corrupting the judges, and encouraging a culture of sycophancy even, as we are seeing among some judges in the apex court. Worse, this also makes the public have less faith in the judiciary itself.

Chipping away at judiciary:

• While a Governor’s position may seem largely ceremonial, it is in fact a squarely political appointment.
• The larger objective, for any reasonable executive, should be to ensure the independence of the other arms of the governing mechanism, and that democratic values are preserved.
• The government’s behavior is also hypocritical for it is deliberately paying no heed to its own manifesto articulated by its late leader, Arun Jaitley, that such post-retirement judicial appointments should be avoided.
• The judiciary is no less culpable in this situation. Judges must recognise that handouts from the government, in the form of such political appointments, are not one-way: there is a giver and there is a receiver.
• The Indian judiciary must distinguish between political favors and other postretirement employment opportunities.

Demarcation of roles:

• There needs to be a demarcation between roles where the presence of a judicial authority is clearly valuable and even necessary, such as in a tribunal or a commission, and where it is not.
• Ideally, the judicial community should take a concerted decision on this, say, in the Chief Justices’ conference.
• The plenary should agree that judges should not take up any appointments upon retirement stemming from political patronage (with the nature of such appointments being clearly defined).
• Additionally, a cooling period of about two years should be considered a mandatory minimum before a judge agrees to take on any post-retirement adjudicatory role, in any case.

Conclusion:

• Justice Y.V. Chandrachud had said that the greatest danger to the judiciary lies within. Members of the judiciary cannot compromise independence by trading it for a plum postretirement sinecure. When one becomes a judge, one signs up to fulfill a promise of ensuring a fair and independent judiciary; this promise cannot be compromised at any cost. Our judges need to be gently reminded of this unwritten contract they have with the Indian people.