Can governments dangling post-retirement jobs for judges influence the courts?

Supreme Court judges who deliver verdicts that favour the government have a better chance of being appointed to post-retirement jobs, a recent study has found. “This suggests the presence of corruption in the form of government influence over judicial decisions,” the authors write.

Since Supreme Court judges are barred from practising law in court after they have retired, they seek other avenues for work. This mostly includes positions that are controlled by the Central government, such as heading tribunals and commissions.

These post-retirement jobs undermine the independence of the judiciary since they could be used to influence the judgments of a judge before retirement.

In the study titled Jobs for Justice(s): Corruption in the Supreme Court of India, authors Madhav S Aney and Giovanni Ko from Singapore Management University and Shubhankar Dam from the University of Portsmouth throw light on the relationship between post-retirement jobs and pre-retirement judgments, a concern that has been flagged by many, including lawmakers and even judges themselves.

What does the study say?

The study looks at a sample of around 650 judgments from the Supreme Court between 1999 to 2014. These judgments were chosen from a pool of over 2,600 cases involving the Union government during this period. The authors analyse these judgments from various perspectives: what happened to the judges after retirement? Who authored the judgments? When were the judges due for retirement? How important was the case (based on the involvement of the number of lawyers and high-ranking legal officers, such as the attorney general and the solicitor general)?

They conclude that “authoring judgments in important cases decided in favour of the government is indeed positively associated with securing a post-SC [Supreme Court] job”. When interpreted causally, “authoring the judgment in one important case decided in favour of the government increases the likelihood of being appointed to a post-SC job by 13-17 per cent”, they say.

Other factors, such as how long before an election a judge is retiring, also contribute to the judge ruling in favour of the government. This is because a judge retiring with ample time to go before an election would be more certain that the current ruling party is going to stay in power long enough to reward the judge for their judgment. The authors write that the government’s chance of winning a notable case “more than doubles when it is decided instead by a bench with both judges retiring long before an election” than when it is decided by a bench where both judges are retiring shortly before an election.

Why is the study of interest?

The authors themselves identify three reasons why this study is important. First, their study identifies the effect of incentives relating to the careers of judges and how it affects their judgments. Second, it highlights corruption in a “very high profile institution subject to intense public scrutiny, where one would expect it to be subtle and hard to detect”. And third, it shows that these problems are structural in nature and are shaped by incentives. This means that institutional reforms would be required to address these problems.

This study adds to the data on a critical issue for Indian democracy: corruption in the Supreme Court.

The presence of corruption in the Supreme Court has been acknowledged by former judges too. In the first week of December, the former Chief Justice of India Ranjan Gogoi hinted at the fact that, like in other walks of life in India, there was corruption in the Supreme Court too. “Corruption has become an acceptable way of life,” he told a news channel as part of an interview around his autobiography. “And judges do not drop from heaven.”

What are the institutional concerns?

Judicial independence is a cornerstone of democracy. However, if the results of the study are accurate, this could be compromised by the large numbers of judges who take up post-retirement jobs controlled by the Union or state governments.

The study points out that the Union government is the single biggest employer of retired Supreme Court judges. The authors write that the appointment process for these posts are not transparent and are, in fact, politically driven. This presents a problem since this gives a chance to the government to hold the post-retirement position as an incentive for a judge while hearing cases involving the government.

A study by Vidhi Centre for Legal Policy in 2016 found that out of a sample of 100 retired Supreme Court judges, as many as 70 had taken government-appointed positions. This is especially concerning since the Indian state is the biggest litigant before courts, accounting for over 46% of the pending litigation.

According to Vidhi, in 56% of these post-retirement appointments, legislation mandates that the position be filled by a retired judge.This shows how the law also playing a role in furthering the interference of the executive in post-retirement judicial appointments.

The majority of post-retirement jobs for Supreme Court judges are in tribunals. There are numerous tribunals dealing with disputes related to consumer matters, company law matters, administrative matters, amongst many others. These tribunals are quasi-judicial bodies meant to reduce the burden on courts. In September, the Supreme Court had reprimanded the government for “cherry-picking” names for some tribunals.