New Delhi: Supreme Court judges who author judgements in favour of the government are likely to be appointed to a “prestigious” job after they retire, according to a research paper titled ‘Job(s) for Justice: Corruption in the Supreme Court’, which provides context to the 18 March 2020 appointment of Ranjan Gogoi to the upper house of Parliament.

“These findings suggest the presence of corruption in the form of government influence over judicial decisions that seriously undermines judicial independence,” said the 2017 study, authored by Shubhankar Dam, a professor of public law and governance, University of Portsmouth in the UK, Madhav S Aney, Associate Professor of Economics, and Giovani Ko, Assistant Professor of Economics, both from the Singapore Management University.

Dam told Article-14 in an email interview that financial motives may not be the prime motive for this kind of corruption, which he characterised as being not individual but systemic. “They (judges) can earn a far better return through arbitration,” said Dam. He reasoned that the offices some of them sought after retirement allowed them proximity to power, policy-making and relevance in public life.

“A ban on post-retirement jobs is unlikely anytime soon,” said Dam. “Till then, we may be at the mercy of judges’ good sense. As Mr. Ranjan Gogoi’s prompt appointment to the Rajya Sabha demonstrates, not everyone is equally endowed with it.”

Dam said it was a mistake to expect judges to be “supermen” (or women). He described them as “ordinary Indians with ordinary (compromised) moralities”.

“For about 40 years now, we have valorized – deified – judges with superhuman qualities,” said Dam. “Suddenly, the screen has fallen. And we are witnessing the backstage and all its messiness. We can see judges for who they are: ordinary Indians with super-ordinary moralities.”

Gogoi, who once remarked that post-retirement jobs are “a scar on judicial independence” was sworn in as a member of Parliament on 19 March 2020 after being nominated by the President of India, Ram Nath Kovind, barely four months after he retired in November 2019.

Gogoi made his comment on post-retirement jobs when he led a five-judge bench on amendments to the Finance Act, 2017, and the functioning of tribunals.

“There is a viewpoint that post-retirement appointment is itself a scar on judicial independence of the judiciary, Gogoi had said. “How do you handle that?”

The Centre’s decision to appoint Gogoi to the Rajya Sabha has also re-kindled a long-standing debate on how post-retirement jobs influence the independence of the judiciary. Gogoi’s nomination is “Legally dubious, morally indefensible” according to Dr. Arghya Sengupta, founder-director of the Vidhi Centre for Legal Policy, a Delhi-based think tank.

Dam, Aney and Ko’s paper examined “whether judges respond to pandering incentives by ruling in favour of the government in the hope of receiving jobs after retiring from the Court”.

Based on a dataset of all Supreme Court cases involving the government over 15 years, from 1999 to 2014—over the tenures of two Congress-led governments and one led by the Bharatiya Janata Party—the research paper found that “pandering incentives” have a causal effect on judicial decision-making.”

The paper defined pandering incentives “as being jointly determined by 1) the salience of the case (exogenously determined by a system of random allocation of cases) and 2) whether the judge retires with enough time left in a government’s term to be rewarded with a prestigious job (since the date of retirement is exogenously determined by law to be their 65th birthday)…”

Their study suggested that “pandering” to the government occurred through two channels: “through actively writing favourable judgements rather than passively being on a bench that decides the case” and “through potentially harmful manipulation of actual decisions in favour of the government”.

The results of the study were not driven by “rotten apples”, but by a “rational behavioural response to perverse institutional incentives in the form of career concerns”, suggested the authors, who said “this kind of corruption suggests the possibility of a serious miscarriage of justice, with far-reaching welfare implications.”

In the interview with us, Dam suggested that judges who retire long before an election (in the middle of a government’s term) are aware of the prospects for rewards. “They know pleasing the government may beget something,” he said.

Edited excerpts from the interview:

Do you find a difference in the number of incentives given by one government or the other? Was there a significant difference in the number of judges who received post retirement jobs by the BJP or the Congress? IF yes, which political party according to you incentivised the judges more?

The instinct to think in comparative political terms – BJP, Congress etc. – is understandable. But our analysis stays clear of that. Our objective was to analyze a systemic pattern of judicial bias in favor of the state – not to pose if the BJP or Congress is worse in coaxing judges to decide in their favor and rewarding them when they do so. The study is based on a 15-year period (1999-2014) and it neatly maps onto 3 terms: NDA (1999 2004), UPA 1 (2004-2009) and UPA 2 (2009-2014). We use these terms only to organize the data. Each term ends with a general election, and part of our analysis studies how elections affect judicial decision-making. We find that judges who retired shortly before an election and judges who retired long before an election decide cases differently. They do so, we suggest, because of the different incentives at play.

Judges who retire long before an election (i.e. in the middle of a government’s term) are aware of the prospects for rewards. They know pleasing the government may beget something. The problem, ultimately, is structural, not political. It is about the sociology of power: how it creeps up on us, why we find it comforting, and the things we do to ingratiate ourselves with those that hold still higher powers. To stay on the right side of the government, to crave and crawl, afflicts vast swathes of Indian society. (Think of journalists, businesspersons and others.) Judges are one, albeit important, part of that canvas. We reduce the complexity of the problem by making it a BJP-Congress matter. Of course, some political parties are more adept than others at exploiting these frailties. Still, the problem is a systemic one.

Did you find whether the judges continued to influence or perhaps favour the government of the day in their new government jobs post-retirement?

This is an excellent question. We haven’t studied this matter. But one would expect that to be the case. There are fascinating aspects waiting to be studied. A post-retirement term of a judge may straddle two governments. He or she may be appointed by one government, and mid-way another government can come into office. It would be interesting to see if judges’ change the pattern of decision-making to suit their new masters. We haven’t studied this.

Your findings suggest that “the presence of corruption in the form of government influence over judicial decisions that seriously undermines judicial independence”. What do you propose could counter this? Should one ban post-retirement jobs entirely? But this would affect tribunals which can be headed by Supreme Court judges only. Or should there be a policy mandating a cooling-off period?

A range of solutions have been proposed. Some have suggested paying judges their final salary as pension, and any other office, if offered, should be unremunerated. That way, judges will have little incentive to take up government posts. But this proposal misunderstands the nature of incentives at play. I doubt financial motives are the greatest in the judges’ mind who accept these positions. They can earn a far better return through arbitration. These offices allow proximity to power, to policy making, to relevance in public life. Presumably, after, say, twenty years on the bench (in the High Courts and the Supreme Court), they are so deeply accustomed to the forms and technologies of power that life is unbearable without a similar sinecure post-retirement.

Cooling-off is the other commonly touted solution. This is already required of bureaucrats who wish to join the private sector post-retirement. This is certainly a better option. But the challenge is to make it happen. Who will summon this rule? Politicians won’t; they want judges on a leash. Judges apparently won’t; they find the status quo comforting. And the same goes for a ban. Who will bring it into effect?

One proposal my co-authors have made is to make the offer of these appointments mechanical. At any given point in time, there are a number of retired judges around. Offers of post-retirement appointments can be matched to their expertise on the bench and based on seniority. Say there are 5 judges between the ages of 65-70 (beyond 70, perhaps that is too old to hold these positions). When a vacancy arises, they (government) offer it to the senior most retired judge (ie, the one who retired earliest of these 5). If he turns down, offer it to the next person and so on. The point is to eliminate the discretion the government has to pick and choose, and that will eliminate the incentive judges currently have to favor governments - so that they dole out jobs. That would eliminate the government’s discretion in these matters. But even this mechanical system cannot take care of political appointments like nominations to Parliament, governorships, ambassadorships etc. Good sense may be the only solution. And that cannot be commanded, legislated, or externally enforced.

The Centre – being a stakeholder, is an important voice in the elevation of judges to the Supreme Court. Even though the SC collegium takes the final decision on the recommendations, reports prepared by the Intelligence Bureau (IB) are an important factor in the decision-making process. How can one insulate the elevation of judges from outside interference? Will the independent body as envisioned in the National Judicial Accountability Commission (NJAC) – which was introduced by the BJP, but later struck down by the Supreme Court, be more effective than the present collegium system? Retired Judges on the Constitution Bench who ruled against the NJAC have now come out and spoken in favour of the NJAC.

I have trouble with the premise of the question. It says: “How can one insulate the elevation of judges from outside interference?” Implicit in this question is the idea that outside interference is all bad, always bad. As a corollary, the “insiders” – judges presumably – are all good, always good. I find this binary frame problematic. We expect judges to be supermen, cut from a different cloth, and wedded to special virtues. They are not. Ordinary Indians with ordinary (compromised) moralities become judges; they do not come from other worlds. For about forty years now, we have valorized – defied – judges with superhuman qualities. Suddenly, the screen has fallen. And we are witnessing the backstage and all its messiness. We can see judges for who they are: ordinary Indians with super-ordinary moralities. Our self-delusion was good till it lasted. (Some years back, the Outlook Magazine looked at profiles of retired judges and their relatives. Bollywood, it turns out, is only slightly more nepotistic than the Indian judiciary.)

Conversely, we expect outsiders – mostly politicians – to be all bad. Oddly, these are people we have trusted to hold public office. Now ask students of law to name Indian judges they hold in high esteem. I suspect the names you will get are of judges appointed under the old system – the pre-collegium system. What explains this mismatch?

How should judges be appointed? Half by the collegium; half by the government and opposition together. I don’t obsess over appointment procedures because appointment is only one aspect of judicial independence. The most independent appointment system will mean little if there are other ways to encourage bias in decision-making. Post-retirements jobs are an obvious example.

Your paper speaks of random computerised allocation of cases before benches, however, the CJI – being the master of the roster, determines the roster for allocation of cases to the judges. How do the facts play out against each other?

The Chief Justice’s power to create rosters, alter them, and deviate from them is great, untamed power. Rosters, we are told, are created on the basis of expertise. Judges learned in certain areas of law are tasked with deciding cases in those areas. And that makes sense. But we know the court does not always scrupulously follow the roster system. We know sensitive cases are presented to the Chief Justice for directions regarding bench formations. We do not know how often this happens. (Of course, larger benches are created at the discretion of the Chief Justice, and so we keep them aside.) The paper assumes that the Supreme Court generally follows the procedure it has set for itself – form benches through random allocations. How much discretion the Chief Justice should have in these administrative – but critically important matters – is, for me, still an open one.

Would you say the system is corrupt? Or are individuals corrupt? Public perception and faith in the judiciary appear to be at an all-time low. In your opinion, is the judicial mechanism robust enough to shake off the perception of pandering to the Centre, or is a systematic policy change required to rebuild confidence in the judiciary?

Please note that the study does not say anything about any individual judge. Statistical analysis, by definition, is at an aggregate level. The paper should not be read as saying anything about the decision-making pattern or career trajectory of any particular judge. What we find is that incentives (post-retirement jobs) have a systemic (corrupt) effect on decision-making. But this is only one form of corruption. The judiciary may be afflicted with many other forms. We say nothing about those.

There is limited credible data on the public perceptions of the judiciary in general, and the Supreme Court in particular. But the data that does exist – in the form of surveys conducted by the Centre for Study of Developing Societies and Azim Premji University – suggests that the Indian public holds the Supreme Court in rather high regard. The Indian public has the greatest faith in the Supreme Court of all public institutions, except the Indian Army. The High Courts and lower courts are also held in high regard, but not as much as the Supreme Court. These are nation-wide trends; only some small pockets report variations. So, the challenge for the Supreme Court – and the judiciary – is to maintain, not rebuild, trust. (Incidentally, political parties are the least trusted in those surveys. And it goes back to your question about outside interference. I find this dissonance intriguing: we trust those closest to us (electorally/institutionally) the least.

This pathology of democracy calls for close analysis. Perhaps the more interesting question is how the court has managed to preserve its trust among the people. (We have a forthcoming paper on this – but it studies only one aspect of trust.) Would events like the prompt appointment of a former Chief Justice of India to the Rajya Sabha, for example, diminish the Court and its actions? Clearly, there is a limit to the amount of controversies the Supreme Court can endure without losing its legitimacy among the people. Where that limit lies is hard to tell. We may find out only in retrospect.

In your opinion, what policy needs to be urgently addressed to secure the independence of the judiciary?

Judicial independence is a multi-headed beast. One policy cannot fix all that undermines it. But if I had only one card to pick, I would opt for reforming contempt laws in India. Despite (welcome) amendments in recent years, contempt laws – and their practice – are an abomination. They have stifled research, investigation, and reporting. India judges, it seems, wield it capriciously and, often, only to protect their personal spaces. The fear of contempt is real, and it has done real harm. Imagine a judge is found accepting bribes in return for a favorable judgment. It is caught on video. What must the journalist do? Currently, the tape must be sent to the relevant Chief Justice for action. Why? The Supreme Court says this needed to preserve the independence of the judiciary. I disagree.

An American analogy comes to mind. Conservative commentators in the United States often allege that the popular American sitcom “Friends” destroyed Western civilization. But if a weekly sitcom could destroy it, perhaps Western civilization wasn’t anything great to begin with. I think of the Supreme Court in similar terms. If a piece of academic research or serious investigative journalism can undermine the Supreme Court, then, is such a court really worth having?

How should India probe corruption in the higher judiciary? A research fellow with the National Judicial Academy in Bhopal wrote a paper in 2018 in which he observed that the regulatory mechanism in India “lacks conceptual clarity”, “suffers role ambiguity”, and is “bereft of functional autonomy”. Your study also appears to indicate that the current system isn’t working. In your opinion, what system will work to combat corrupt judges? Or more importantly, a corrupt system?

Corruption comes in many forms. Bribes are the most obvious example. And I have referred to it earlier. The current system of judges deciding if judges can be criminally proceeded against, to me, is an unacceptable one. Just how fragile is the Supreme Court – or the judiciary in general? But corruption may also take the form of indirect influence. That is far harder to police. A ban on post-retirement jobs is unlikely anytime soon. Till then, we may be at the mercy of judges’ good sense. As Mr. Ranjan Gogoi’s prompt appointment to the Rajya Sabha demonstrates, not everyone is equally endowed with it.

(Ritika Jain is a freelance writer based out of New Delhi, reporting on legal affairs and the judiciary.)