The elephant in the courtroom
On 12 January, four Supreme Court judges held a press conference at justice Jasti Chelameswar’s residence. It was remarkable to hear the judges express their concerns, directly to the public, about the manner in which the chief justice was running the judiciary. They and their immediate superior, the chief justice, are outside any normal internal or external oversight process, and may only be impeached, a step never taken in the Indian Supreme Court’s 67-year-history. The conference was a result of the absolute lack of other venues where these judges could discuss their concerns.
Legal scholars have pointed to many reasons for the current crisis—the opacity of the functioning of the court, its appointment system by collegium, concentration of power in the chief justice as the master of the roster, and the overload and pendency of cases—all factors which contribute to greater discretion in the hands of the chief justice. These are important reasons, and certainly need reform. However, there is an elephant in the room, or shall we say an elephant in the courtroom, that remains unacknowledged—the government and the role it plays in post-retirement positions for judges.
The government is the biggest litigant in India. While there are no official numbers, estimates suggest that 45-70% of all the cases, and close to 50% of the pending cases, have the government as at least one of the litigants. The government, at every level, clearly has a lot at stake with the judiciary. It is also pertinent that the Indian system allows Supreme Court and high court judges to accept government positions post retirement. Not only is this allowed, there are government tribunals and commissions which have certain positions that can only be filled by retired judges. Therefore, the biggest and most frequent litigant is also in a position to determine post-retirement job opportunities for the judges. It’s a system set up for abuse and corruption.
The average tenure of a Supreme Court judge is only two-three years. This is a result of elevating high court judges to the Supreme court close to retirement age (62 years) with the Supreme Court retirement age set at 65. The average tenure of the chief justice, chosen by seniority, is less than a year. The Supreme Court has become a revolving door for judges, who serve for too short a time to leave a mark; with the retirement age well before the end of their productive abilities. So, the best strategy available to the judges seems to be to position their tenure as best possible for future opportunities. It must be a wonderful prospect to have job security, continue living in the beautiful bungalows of Lutyens Delhi, with power and authority over important state matters. The cost paid in this process is creation of bad and unjust law, because of biased verdicts in favour of their biggest litigant who also happens to be their biggest benefactor.
This is not just a hunch, or wild accusation against Supreme Court judges, but an empirical reality. In a December 2017 paper, Madhav Aney, Shubhankar Dam, and Giovanni Ko find that judges who have authored favourable judgements in important cases are more likely to receive prestigious government jobs (using data on post-retirement Supreme Court appointments and the Supreme Court case list during 1999-2014). A disturbing find in the paper is that the pandering is not a passive process of merely withholding an unfavourable verdict, or using seemingly benign techniques like strategic delays, etc. It is in the form of actively writing judgements favourable to the government, thereby making bad/biased law for the future.
The chief justice has been finally called into question over many questionable decisions like the delay in the assignment of certain cases, the choice of the bench, and the refusal to listen to internal suggestions by other senior judges. Individual judges acting in this manner, during their short term, may escape notice if they write a few biased judgements in the last few months of their tenure.
For excellent historical reasons, the judiciary has fervently guarded its appointment process to eliminate government interference in judge selection. But if the method used by the collegium for appointing judges is sufficient for an independent judiciary, then there should be no question of any executive influence or judicial discretion by the Chief Justice. Yet, four of the senior-most judges, also appointed through the same system, point to exactly that problem. And therefore, we need to first address and confront the root of the problem—the incentive incompatibility at the point of exit—and then move beyond to questions of appointment, roster, bench allocation, etc. The court needs immediate reform to increase the retirement age and disallow retired judges from accepting any position for a period of at least five years post retirement.
Judicial independence reforms by the highest court have been self-serving in that the court ignores the most relevant reform—post-retirement government appointments of high court and Supreme Court judges. Only the law commission has pointed out this incentive incompatibility, and virtually no attention has been paid to this fundamental problem by the executive or the judiciary. All the actors—from the legislature, executive, and the judiciary—are complicit in hiding this problem and perpetuating this system where the biggest litigant before the judges is also their biggest benefactor post retirement. This is the elephant in the room that the executive, the bench, and the bar collectively refuse to acknowledge—one that will lead to a trust deficit and eventual downfall of the highest judicial institutions.
Shruti Rajagopalan is an assistant professor of economics at Purchase College, State University of New York, and a fellow at the Classical Liberal Institute, New York University School of Law.
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