Such appointments always create political controversy as critics believe they compromise judicial independence. Data analysed by a group of researchers indicates this concern may not be without basis.
Several top judges have, in the past, been appointed to key posts by the government after they retire. A recent example is former Chief Justice of India Ranjan Gogoi’s nomination to the Rajya Sabha . Such appointments always create political controversy as critics believe they compromise judicial independence. Data analysed by a group of researchers indicates this concern may not be without basis.
In a recent article for Ideas for India, Madhav Aney of the Singapore Management University, and others, describe their analysis of 661 judgments delivered by Supreme Court division benches between 1999 and 2014. All these cases involved the Indian government as a party. The authors studied the link between the kinds of judgments delivered in important cases and post-retirement appointments of the judges involved. The authors identify key cases through the choice of lawyers deployed by the government. The researchers find that authoring each additional judgment in favour of the government in an important case increased the likelihood of a post-retirement job for the judge involved by around 15% .
Chances are stronger if the next election is some time away, as this boosts the prospect of a post-retirement job, while the same government is still in power, the authors suggest.
They also suggest that such appointments tend to be made sooner than the average time taken to get to a post-retirement job, which is 11 months.
However, the authors caution against interpreting this data as evidence of corruption by individual judges, or to say that judges change their decisions to get post-retirement jobs. They suggest systemic solutions, such as discontinuing the practice of having retired judges in government posts, and having a cooling-off period between retirement and the next appointment.