Justice Yadav’s post-retirement appointment part of political malaise

Among many issues in our badly flawed republic that require prompt action, the question of immediate appointment after retirement should be given a high priority

The recent appointment of retired district judge Surendra Kumar Yadav as deputy lokayukta by the Uttar Pradesh government once again raises two disquieting questions.

One, do some members of our judiciary, on the verge of retirement, while hearing cases in which the ruling regime of the moment has an interest, deliberately deliver a verdict that is music to the government’s ears in the hope of securing a plum post-retirement position?

Two, does appointment of retired judges after delivering a ‘favourable’ judgment erode the faith of people in the independence of the judicial system, make them believe in the existence of a cosy quid pro quo between the executive and the judiciary?

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The second question is of particular import, although the first is no less significant. It requires constantly keeping in mind that among the fundamental principles justice is the first one.

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Barely 13 months earlier, the same question was raised after the government nominated former Chief Justice of India Ranjan Gogoi to the Rajya Sabha.

Although several former judges of the Supreme Court have been members of the Upper House previously, this was the first instance of a retired CJI being nominated to one of the 12 seats allocated under Article 80 of the Constitution for anyone with “special knowledge or practical experience in respect of literature, science, art and social service”.

Gogoi’s nomination, just months after his retirement, became further contentious when it came to light that in January 2020, his brother, Air Marshal (Retd) Anjan Kumar Gogoi, was named as a member of the North Eastern Council (NEC), a statutory body that advises the Centre on matters pertaining to socioeconomic development of the northeastern states.

The two appointments may be completely unconnected, but in a nation where ‘family connections’ are useful to secure positions, the air marshal’s nomination to the post remains a matter of speculation, if only for the sheer coincidence.

It is well known that in his capacity as CJI, Gogoi fast-tracked and presided over the five-judge bench that on November 9, 2019, awarded the disputed land in Ayodhya to representatives of Hindus, despite terming the Babri Masjid’s demolition as an “egregious violation of the rule of law”.

He was also a judge on the Rafale matter and the verdict and had turned down a batch of pleas asking for further investigations into the purchases.

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This was also not the first time that the current National Democratic Alliance government with Prime Minister Narenda Modi at its helm appointed a retired CJI to a position, important enough for eyebrows to be raised.

A few months after the NDA government assumed office in May 2014, retired CJI P Sathasivam, was appointed governor of Kerala. He was the first one to have occupied the highest position in the judicial system to occupy the governor’s office.

It was pointed out then that the retired CJI had headed a bench that provided relief to the then home minister of Gujarat, Amit Shah, in the custodial killing case of Tulsiram Prajapati. An FIR against Shah in this case was scrapped by this Bench.

Significantly, the positions of a nominated member of the Upper House and the governor are lower than the CJI’s office in the warrant of precedence and there is a fair argument that by accepting the positions, the two lowered the dignity of the high office they once held.

The case of Yadav, although he was a member of the lower judiciary, too raises several questions. Most importantly, his judgment last September was a virtual play on the title of notable film, the 2011 Bollywood biographical thriller, No One Killed Jessica.

Twenty-eight years after the demolition of the Babri Masjid, at the end of several twists and turns in the criminal cases pertaining to the shrine’s destruction, an act that in 2010 was termed by the apex court as a “crime which shook the secular fabric of India”, Yadav acquitted all the accused. He too offered no answer on the identity of the people who demolished the mosque.

This judgement did not take note of the report submitted by Justice Manmohan Singh Liberhan who stated that it “cannot be assumed even for a moment that Vajpayee, Advani and Joshi did not know of the designs of the ‘Sangh Parivar’”. Despite this observation, Yadav, as the special CBI judge, asserted that the mosque was demolished spontaneously.

Significantly, in a career spanning exactly 30 years from 1990, Yadav – he started as an additional munsif in Faizabad – ‘forfeited’ a promotion to complete hearing the case as it raced against the Supreme Court deadlines that were periodically extended.

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Yadav began hearing the Ayodhya demolition case as CBI special judge in 2015 but it was only in April 2017 that the Supreme Court directed him to hold day-to-day proceedings. In 2019, the last year of Yadav’s service, he was promoted as district and sessions judge and posted to Badaun district, UP, but this order had to be withdrawn because the apex court ruled that the judge must remain in office till the judgment in the Ayodhya demolition remained undelivered.

Given that backdrop, his appointment as deputy lokayukta raises questions if he has been ‘compensated’ for his ‘sacrifice’ and for acquitting all accused in the criminal case.

The practise of the government appointing retired judges goes back a long way.

India’s first government under Jawaharlal Nehru appointed Justice S Fazl Ali, a Supreme Court judge to a Raj Bhavan, of Orissa, in May 1952.

Thereafter, there was the atypical case of Justice Baharul Islam who embarked on his professional career as an advocate in the Assam High Court in the early 1950s. In the mid-1950s, while practising law, he joined the Congress and was elected to the Rajya Sbha in 1962 for a regular six-year tenure and then was re-elected in 1968.

But he resigned in 1974 and was appointed by Indira Gandhi to the High Court of Assam and Nagaland. Several years later, he became the chief justice and after his retirement from that position, was appointed a judge in the Supreme Court. This was an unprecedented appointment because retired judges are not made judges again unless in the same court.

Three years after his appointment, he entered the electoral arena, again as a Congress candidate from Barpeta, Assam. However, the polls were pushed back due to ongoing ethnic agitation in the state. He eventually served another term in the Upper House from 1983 to 1989.

The malaise is not limited to persons who held judicial offices but extend to those who have held any constitutional position. Famous cases include MS Gill becoming a union minister in the Congress-led UPA government after being chief election commissioner and former CAG TN Chaturvedi, who was appointed by Vajpayee as the governor of Karnataka. He had played an important role in his office closely examining the Bofors deal.

Several other examples can be provided in the NDA and UPA era, and also during the United Front years. A group of faculty member at the Singapore Management University, City University of Hong Kong, and Nanyang Technological University scrutinised a data set of all cases before the Supreme Court of India between 1999 and 2014 involving the government. (https://www.ideasforindia.in/topics/governance/the-politics-of-post-retirement-appointments-corruption-in-the-supreme-court.html)

The study established that an increase in post-retirement appointments for judges to government positions acts as a powerful incentive for them to decide cases in favour of the state. This unsettling trend has continued at the same rate since 2014, if not become graver.

In January 2019, Justice AK Sikri voted alongside Modi in the three-member select committee and removed Alok Verma as CBI director. Days later, he was appointed, an offer he eventually turned down, for a post-retirement assignment at the Commonwealth Secretariat Arbitral Tribunal.

Former judges of the apex and high courts have been appointed as chairmen of National Green Tribunal, National Consumer Redressal Commission and Kerala’s State Human Rights Commission in recent years to cite just a few.

Arun Jaitley once acerbically stated there are “two kinds of judges – those who know the law and those who know the law minister”. He asked for a compulsory gap of “two years after retirement”, before the retiree is appointed to any position.

Jaitley additionally alleged that “pre-retirement judgments are influenced by a desire for a post-retirement job” and unless a time gap was imposed, 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”.

Nitin Gadkari too had claimed that the position to which a certain judge was to be made was decided before their retirement.

It is clear that political parties take up this matter and criticise the government only when they are in opposition. But once the transition is made to the treasury benches, they become participants in this cosy game to secure extract favourable verdicts from ambitious judges.

An advocate of the Supreme Court once told me that only that judge can be trusted who “has no past and is not interested in the future”.

Former CJI RM Lodha suggested a policy of continuing to pay retired judges their salary or an equivalent pension to reduce the attraction of such jobs. But the suggestions ignore attraction for power and the ability to wield it.

After retirement, with no job in hand, judges and other holders of constitutional offices are often unprepared for anonymity and lack of access to people in official positions. The desire is thus to remain a cog in the wheel.

All post-retirement appointments can be debarred by law, but neither governments and opposition nor judges and constitutional office holders have worked on this.

Among many issues in our badly flawed republic that require prompt action, the question of immediate appointment after retirement should be given a high priority.

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