Sinecures for retired judges: 9 years of Modi rule equal six-decade record

Had the late Arun Jaitley been around today, he’d possibly respond with a mischievous smile and a wisecrack to the irony of his bitter rivals, particularly from the Congress, quoting him to add heft to their criticism of the appointment of S Abdul Nazeer as the Governor of Andhra Pradesh.

Back in 2012, at a conference organised by the BJP’s legal cell, Jaitley had famously criticised the practice of successive Union governments offering sinecures to members of the higher judiciary shortly after their retirement. “There are two kinds of judges — those who know the law and those who know the Law Minister,” Jaitley had said while asserting that though there was a retirement age for them, “judges are not willing to retire” and that “pre-retirement judgements are influenced by (the lure of) post-retirement jobs.”

Watch | Governor post for Justice Nazeer sends a wrong message: Justice Govind Mathur

When Jaitley eschewed the practice, most judges retiring from the Supreme Court who were awarded an extended period of well-paid employment by governments were accommodated in roles that expressly required a person with the credentials of a retired SC judge.

These included postings such as chairmanship of commissions and tribunals or other judicial and quasi-judicial bodies, which, by respective statutes, needed a retired CJI or a former judge of the apex court or a high court at the helm. For most, though certainly not all, of such appointments, governments waited for varying periods of time — in some cases, months, and in others, even years — before offering sinecures. There was also the other option of appointing retired judges to head different inquiry committees constituted as per demands made of the government of the day.

Political appointments were rare

Political appointments, such as Governor of a state or election (not nomination) to the Rajya Sabha, were few and far between. Justice M Hidayatullah, who retired as CJI in December, 1970, remains till date the only former CJI to have been elected as Vice-President of India (1979 to 1984).

Also read: Ayodhya, triple talaq, demonetisation: Key verdicts of retired judge Nazeer, new AP guv

Between 1950 and 2014, there were only two instances of apex court judges being appointed Governors upon retirement. Justice Sir Saiyid Fazl Ali, who retired from the Supreme Court in September, 1951, served two stints as Governor, first of Orissa from 1952 to 1954 and then of Assam from 1956 to 1959. Over four decades later, Justice Fathima Beevi, also the first woman judge at the Supreme Court, was appointed Governor of Tamil Nadu in 1997, five years after she retired from the apex court.

Equally rare during this period, though markedly more controversial, were instances of Supreme Court judges being elected to the Rajya Sabha. Justice Ranganath Misra, who retired as CJI in November, 1991, was nominated to the Rajya Sabha on a Congress ticket in 1998.

A unique case was that of Justice Baharul Islam. Islam had already served one term in Rajya Sabha as a Congress member and was well into his second when he resigned from the Upper House, in 1972, upon being appointed as a judge of the Assam and Nagaland High Court (later the Gauhati High Court). Islam retired as Chief Justice of the Gauhati High Court in March 1980 but was elevated as a judge of the Supreme Court in December 1980. The controversies around Justice Islam did not end here. He resigned from the apex court in January 1983 to return to the Congress party under Indira Gandhi and was promptly elected to the Rajya Sabha for a third term.

What is different now

The BJP today can justifiably counter the Opposition’s attack by claiming that successive governments helmed by different political parties have appointed former judges as Governors or Rajya Sabha members. What is different now though is the greater frequency with which such appointments are made and the progressively shrill allegations of a quid pro quo that these sinecures trigger due to the judgements with which the appointees were associated shortly before their retirement.

The past nine years have already equalled the record of the over six decades prior to Narendra Modi’s ascension as Prime Minister in terms of gubernatorial appointments of retired Supreme Court judges. This, when the Opposition, as well as certain quarters of the legal fraternity and the civil society, have been relentlessly criticising the Modi regime of undermining the apex judiciary and its independence.

In September 2014, within four months of Modi’s first Lok Sabha win, Justice P Sathasivam, who retired as the CJI in April that year, was appointed Governor of Kerala. The appointment was instantly linked to Sathasivam’s 2013 decision, as CJI, of quashing an FIR against Amit Shah in the alleged fake-encounter killing of Tulsiram Prajapati, an eyewitness to the Sohrabuddin Sheikh encounter case.

With Justice Nazeer’s appointment as Andhra Governor, the current regime has matched the collective record of all its predecessors in sending a former apex court judge to a Raj Bhawan, albeit with much greater alacrity.

Three of five Ayodhya judges “rewarded”

In the five years that he was a judge of the Supreme Court, Justice Nazeer was fairly non-controversial and maintained a low profile, unlike several other judges of the recent past, despite being part of various benches that delivered critical judgements. Now, nearly every critic of Nazeer’s sinecure has highlighted his presence on two Constitution Benches, one that ruled in favour of Hindu parties in the Babri Masjid-Ram Janmabhoomi title suit and paved the way for construction of a Ram Mandir in Ayodhya, and the other that upheld the constitutional validity of Modi’s demonetisation decision.

Ranjan Gogoi may have once advocated the need for “noisy judges” but a widely accepted aphorism within the legal fraternity has been that judges must speak only through their judgements. Verdicts that judges author or are party to are a window into not just their legal acumen but also their character, convictions, social philosophy, and ideology.

With Justice Nazeer’s appointment as Governor, three of the five judges who jointly authored the Ayodhya judgement have now been “rewarded” with post-retirement offices. Gogoi, who headed the Constitution Bench in the Ayodhya matter, was nominated to the Rajya Sabha on March 19, 2020, after retiring as the CJI on November 17, 2019, following a highly tumultuous tenure. Justice Ashok Bhushan was appointed chairperson of the National Company Law Appellate Tribunal on November 8, 2021, four months after demitting office as an apex court judge. Justice (later CJI) SA Bobde is the only member of the Ayodhya bench who has, so far, not been given a post-retirement role by the government, while the only judge in that case who is still serving the apex judiciary is DY Chandrachud, the current CJI.

The Gogoi era

Much has been written about the sinecure for Gogoi but there is merit in recounting at least some of that vital information. Gogoi’s participation, along with Justices Jasti Chelameswar, Madan B Lokur, and Kurian Joseph, in that historic press conference of January 12, 2018, where the four judges red-flagged serious concerns over administrative decisions taken by then CJI Dipak Misra, led many to expect that as CJI, Gogoi would arrest, even reverse, the crisis of credibility that had begun to plague the apex judiciary in recent years.

However, it did not take too long for Gogoi to lose that almost-messianic aura. His year-long stint as CJI ended up being way more controversial than that of his frequently maligned predecessor.

Also read: Not unprecedented, several SC judges before Justice Gogoi got key posts

Gogoi’s scant regard for the established judicial dictum — nemo judex in causa sua (no one is judge in his own cause) — was evident when he presided over the matter concerning allegations of sexual misconduct that a Supreme Court staffer had levelled against him. His preference for “sealed covers” shrouded many a critical judicial proceeding, including the Rafale case, with opacity. Important matters pending before various constitution benches — challenges to the reading down of Article 370 being a case in point — were consigned to the cold storage. And then, days before his retirement, came the Ayodhya verdict.

The other laabharthis

Of course, this largesse from the Modi government isn’t just reserved for judges who adjudicated the Ayodhya case. Other notable laabharthis (beneficiaries) of this post-retirement employment guarantee scheme include AK Goel and Arun Mishra, who retired from the Supreme Court in 2018 and 2020, respectively. Justice Goel, whose verdict for massively diluting the SC/ST (Prevention of Atrocities) Act triggered such massive countrywide protests by Dalit and Adivasi groups that the Centre had to eventually overturn the judgement through the legislative route, was appointed chairperson of the National Green Tribunal within hours of retiring from the Supreme Court.

Mishra, who, as a sitting judge of the apex court, had hailed Modi as “an internationally acclaimed visionary” and a “versatile genius”, is the current chairperson of the National Human Rights Commission. The post of NHRC chief had been lying vacant for nearly six months before the government cleared Mishra’s appointment even though there was no dearth of candidates, including former CJIs TS Thakur, JS Khehar, Dipak Misra, Ranjan Gogoi, and SA Bobde, and countless more retired SC judges, who could have been picked for this job.

What made Arun Mishra more qualified for the role of NHRC chief than these other retired judges is not known (at least officially). What is a matter of public record though is Mishra’s performance as a judge who, in February 2019, ordered the eviction of millions of poor forest dwellers from various forested regions because the government had rejected their entitlement to their ancestral lands. Mishra’s decision led to a nationwide agitation by tribal groups, forcing the SC to keep the order in abeyance.

Watch: Government extends post-retirement allowances for CJI and SC judges

No explanation for appointments

Significantly, when Gogoi and the other three judges held that historic press conference in January 2018, they also singled out for condemnation the then CJI Dipak Misra’s decision to allocate the case demanding a probe into the mysterious death of Judge BH Loya to a bench headed by Justice Arun Mishra. The protest by the four judges forced CJI Dipak Misra to re-assign the Loya case to his own bench where the matter was eventually dismissed.

However, Arun Mishra’s bench continued to be assigned cases — including by Gogoi, when he, as CJI, was the Master of Roster — that were of particular interest to the Modi government and also involved questions of protecting human rights. And, as Supreme Court records reflect, cases where Arun Mishra was the presiding judge and the Centre was a party, the verdict almost always went in the government’s favour.

It is unfortunate that neither the President of India nor the Union government are required to explain the rationale behind picking a person for important offices like those of the Governor, heads of commissions and tribunals, or nomination to the Rajya Sabha. What is equally troubling is that this arbitrary system of handing out plum sinecures has been so normalised that all it evokes now in terms of public reaction is a fleeting flurry of outrage followed by a deafening silence, until the next sinecure comes along and reminds us of Jaitley’s pithy observation.