…O, it is excellent

To have a giant’s strength, but it is tyrannous

To use it like a giant.

(William Shakespeare, Measure For Measure)

From the lens of a lawyer, the recent nomination of former Chief Justice of India Ranjan Gogoi to the Rajya Sabha opens up the debate regarding judicial independence. It is not the first time that an ex-Chief Justice of India has been offered a remunerative political post soon after his retirement, yet it is telling, given its timing.

Justice Ranjan Gogoi was one of the four senior most judges who had called for a press conference, in a rare historical moment, speaking openly about the crisis that the Judiciary in India faces today.

In doing so, Justice Ranjan Gogoi, along with this brother judges, triggered a nation wide debate on Judicial Independence and Judicial Accountability. Justice Gogoi’s nomination to the Rajya Sabha under the Modi government, opens up a host of interesting questions – legal and otherwise.

Legally speaking, are there limitations on what a judge can do once he/she is no longer in office? Consider this. The constitutional concept of judicial independence, implies three things:

1. Judges are seen as beings with wisdom, courage, and independence. In other words, the best of human beings. Thus, their selection/appointment and actions have to be free from any undue pressures and should also be seen as such.

2. Whatever judges do impacts the perception about judicial institutions, which is why there are several conventions regulating how a judge should behave, while holding judicial office and when out of it.

3. Contempt of Court extends not only to the criticism of the courts or the Judiciary as an institution, but also to judges in their individual capacity.

While these conceptual assumptions work perfectly well when a judge is in office, important questions are raised about his/her expected or appropriate conduct when out of office.

For example, when out of office, and appointed to positions which are political appointments, should judges now be seen like rest of us? In other words, should the ‘halo’ that we associate with judges in their judicial capacity cease to exist when they are out of office?

Similarly, can a judge be seen vacationing, or mixing with politicians more freely when out of office? Also, can judges air their personal preferences for political parties or persons freely, when out of office? Similarly, as ‘public persons’, can they now be criticized more freely by one and all, without the fear of contempt?

All of these questions depend on the larger question of what rights and duties tag along with a judge, once he/she is out of office. When in office, a judge enjoys special privileges against being criticized, in order to uphold judicial independence. When out of office, he/she stops enjoying any such privileges and becomes more vulnerable to criticism.

But in order to ensure that common people perceive judges to be independent, it is pertinent that their conduct, even post-retirement, is regulated in some ways.

Some judges provide an example of self-regulation, such as former Chief Justice of India Mohammad Hidayatullah, who denied rumours of taking up the offer of being appointed to the World Court or as Lokpal, when he was hearing the Privy Purse case. He was appointed as Vice-President only after nine years of retiring from his post as a Supreme Court judge.

But others have taken the advantage of the absence of a law on cooling-off period to switch between their roles as a judge and a politician, giving an impression that judges too can be scouting for government positions and post-retirement benefits, while in office.

Rajya Sabha nominations are political nominations, which are done by political parties as ‘quid pro quo’ for public appreciation of a party or its people, in addition to the achieved excellence in a certain field. However, the latter by itself, without any political alignment, rarely results in Rajya Sabha appointments.

While Justice Gogoi suggested in his interview with India Today that a Rajya Sabha nomination by the President is not really remunerative per se, one can see the obvious advantages that come with being a Parliamentarian – not just in terms of remunerative luxuries of staying in Lutyens Delhi, but also in terms of political power that one holds.

The limitation on judges taking on any remunerative role immediately after their appointments stems from the larger idea that judicial independence requires that those who hold office should be seen as above all influence.

This extends the scrutiny on the judges’ behavior post retirement, as judges cannot be seen to decide in a particular way, in lieu of their search for post-retirement benefits. Simply put – once a judge, always a judge.

Yet, there can be a balanced approach, where retired judges do take up positions but after a ‘cool off’ period so that no direct link of possible expectations, and resultant interference in their functioning can be established by common people in the democratic set-up.

But outside of law, this incident also raises other questions. First, it triggers the classic debate on the relationship between law and politics.

What is the relationship between law and politics and how does it manifest in the behavior of actors who are seen either as belonging to the law or being guided pre-dominantly by politics? With India debating the issue of judicial independence and judicial appointments, do we need to revisit our view of judges at a societal level? Are judges really ‘lawmen/women’ or very much political actors in the democratic set-up?

For instance, in America, judges are politically appointed but in India, we continue to have the system where judges appoint judges. The underlying assumption is that judges are beyond political influence and are more adept at maintaining judicial independence.

But the recent incidence of Justice Gogoi taking up a Rajya Sabha nomination within four months of his retirement, especially after some of the most controversial judgments in which he presided ended up favouring the government (including Ayodhya and Rafale), raises serious questions on the foundation of this assumption.

Then there is the question of judges and ambitions.

One wonders, at a human level, if there is anything wrong with a judge being seen as ambitious. Not all judges may necessarily see their judicial tenure as the peak of their lives. If anything, they may only come out more disillusioned of their role as judges. They may also tend to lean more in favour of Executive or Legislature, in the delicate balance that the theory of separation of powers seeks to draw under the constitutional scheme. This may present the problem of the Judiciary being ‘Executivised’ to use the term by Justice Madan Lokur in his latest article on the subject.

Richard Posner argues in ‘How Judges Think’,

“...judges are not moral or intellectual giants (alas), prophets, oracles, mouthpieces, or calculating machines. They are all-too-human workers, responding as other workers do to the conditions of the labor market in which they work.”

Similarly, Brian Tamanaha argues that most judges are ‘pragmatists’. In “How an Instrumental View of Law Corrodes the Rule of Law”,

“It is fair to surmise that a greater proportion of contemporary judges are judicial pragmatists….Judicial decisions today routinely cite policy consequences.”

If the judges are seen as all too human, and primarily ‘pragmatic’ in their approach, there is no reason to assume, that they will behave any different when out of office.

In other words, perhaps we need to break down the perception of a ‘halo’ that is attributed to the judges even when they are in office and see them simply as humans, operating under limitations, of human psychology and behavior, both within and outside the office.

But doing away with the ‘halo’ of the judges may be resisted by the judges themselves. Most of them seem to insist that the halo is justified, nay, also necessary to maintain judicial independence. Can the judges then have their cake and eat it too? After all, judges do enjoy a special status as compared to other professions.

Clearly we don’t speak of ‘railway independence’ or ‘medical independence’ or ‘accountants’ independence’, the way we speak of ‘judicial independence’. Therefore, the increased scrutiny and the need for self-restraint, even after they have relinquished judicial office, seems only but a natural professional hazard.

In order to understand the reactions that Justice Gogoi’s nomination to Rajya Sabha has received, it is pertinent to push harder our own understanding of what we think of judges.

We may begin by asking, what do judges want? If common people are incentivized by money, power, reputation, family, peace – are judges any different? Most of the judges in India, as also elsewhere come usually from upper middle-class and are not representative in the truest sense of the word.

So when we analyse individual judges and their track records, both while in office and after post-retirement, we need to raise questions about their appointment process and whether it is representative of the society we live in.

We also have to look at the pecuniary benefits that judges receive during their official tenure and if that is sufficient to maintain the lifestyle that they get used to while serving in their judicial capacity. To expect them to act only with altruistic motives is to somehow expect that those who are attracted to the profession are not made of the ordinary dust like all of the other human beings.

In essence, the nomination of Justice Gogoi opens up several questions that need deliberation by the intellectuals of the day. In the meantime, however, one thing is clear – judges are neither ordinary beings nor supra human beings. There is a good chance that they may be influenced by their own ambitions and political forces and cite the lack of law to justify their actions.

It is imperative, therefore, for India to have a ‘cool off’ period provided by law whereby judges should not be permitted to take up any government post, or employment, or even constitutional or political posts, upto atleast two years of their retirement. For this, an amendment in Article 124 (7) of the Indian Constitution is required whereby a retired Supreme Court Judge, in addition to being disallowed to ‘plead or act in any court or before any authority within the territory of India’, should also be disallowed to be appointed to the posts of President, Governor, Member of Parliament etc. for upto two years of retirement.

This should also apply to High Court judges who may retire without being promoted to the Supreme Court and for this, it is best that the government brings a legislation outlining the two year cool-off period for judges at all levels of the judiciary.

Justice is a lot about perception. This is why there is a need for regulations on judges’ conduct even post retirement. Judicial independence requires that our Constitution’s construct of ‘separation of powers’ is extended to judges’ conduct even post retirement and is balanced by the tool of ‘cooling off’ period. In the meantime, we can continue to enquire on a case to case basis if judges are intellectual giants or giants who use power in a tyrannous way.

The author is a lawyer at the Supreme Court of India, founder of Hamara Kanoon (YouTube), and author 'Life At Law School' (EBC). Write to her at advocateavanibansal@gmail.com

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.