Source: The Hindu


Context: Recently Mr. Rajan Gogoi, former CJI was nominated as a member of Rajya Sabha by the President of India.

More on News:

  • Some experts are claiming it to be a case of quid pro quo wherein Mr. Gogoi has been rewarded due to judgements delivered by him in favour of the Government.

The probable impact of such appointments:

  • It undermines independence of the judiciary as post-retirement opportunities can lure the judges in delivering biased judgments.
    • Data from Judgments showed a 13-15% higher probability of a Government favoured verdict if the judge was offered a post-retirement job. 
  • It acts as a blot on the justice system wherein citizen’s trust over the judiciary gets shaken as the government is the largest litigant in court cases as well as the largest provider of post-retirement jobs.
  • It will give the executive unbridled powers using which they can undermine the constitution as well as citizen’s rights as was testified during the time of emergency.
  • It also undermines the efficacy of exclusive control which judges enjoy over their appointment process.

Way Ahead:

  • The most obvious solution could be to discontinue the practice of appointing retired judges to government positions but this seems very difficult to achieve.
  • Introduce a cooling-off period for judges as is for the Bureaucrats.
  • Another policy can be giving a pension equivalent to the salary of judges as suggested by R.M Lodha (former CJI).
    • The efficacy of this move is not much as judges generally take post-retirement jobs owing to the powers and influence that wields from the position and not a mere monetary incentive.
  • Another way to solve this problem is to make the appointment to these roles mechanical based on the retirement dates and judges’ subject-matter expertise. 
    • The Supreme Court’s registry already assigns subject-matter expertise to judges to operationalize the computerized allocation of cases. 
    • That subject-matter expertise can be mapped to possible post-retirement jobs, this de-links the decisions they make in the Court with their future job prospects.
    • Still, this mechanical process leaves open the challenge of political appointments – like becoming a member of Rajya Sabha.

The Court is rightly concerned about keeping appointments to the Supreme Court under its exclusive domain. However, preserving judicial independence also requires thinking deeply about the right institutional design that ensures post-retirement appointments do not create perverse incentives in judicial decision-making.