The politics of post-retirement appointments: Corruption in the Supreme Court?

The Indian judiciary bats for judicial independence. Wary of executive interference, judges ferociously protect their institutional turf. But does India’s judicial system suffer from an underhanded breach of judicial independence? Using a novel dataset of Supreme Court decisions between 1999 and 2014, and career trajectories of retired Supreme Court judges, this article finds 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.

On 18 November 2019, Mr. Ranjan Gogoi, the 46th Chief Justice of India (CJI), stepped down from the Supreme Court. Four months later, he stepped into the Council of States, the Upper House of India’s Parliament. On 16 March 2020, President Ramnath Kovind nominated him to the Upper House on the advice of the Narendra Modi government. India’s legal corpus – its Constitution, laws, and rules – do not forbid such appointments. Still, the announcement has invited stern comments. ‘Has the last citadel fallen’, a retired judge of the Supreme Court metaphorically posed. ‘It is a quid pro quo’, a retired Chief Justice of the Delhi High Court alleged. And several politicians, lawyers, and scholars have echoed similar sentiments. The appointment is inappropriate, they insist; it undermines judicial independence in India.¹

Judicial independence: Securing the front-end

Robust constitutional democracies need independent judiciaries. The core idea is simple: judges should decide cases and, if necessary, hold the State (or other litigants) accountable without fear or favour.² Judicial independence suffers if governments can – directly or indirectly, publicly or privately – coerce, incentivise, or undermine judges and their decisions.

Keen to insulate the judiciary from such political (executive) interference, the Indian Supreme Court, starting in 1994, rewrote the rules of judicial appointment under the Constitution. The Court decided that the ‘collegium’ – a cohort of senior judges – will appoint new judges. They granted the executive only a limited, cursory say in the process. Implicit in this approach was the idea of a directly proportional relationship between distance and independence: the more distant a court is from the executive, the more independence it has.

But in 2015, the Narendra Modi government, India’s first majority government in 30 years, struck back. It piloted a constitutional amendment to undo the novelty and reassert the executive in the appointment process. With near unanimous support in Parliament, the government created a National Judicial Accountability Commission (NJAC) – one that granted the Supreme Court a prominent but not an exclusive say in the appointment process. The Supreme Court rebuffed it. A year later, the Court invalidated the constitutional amendment, and judicial appointments reverted to the collegium system. And all this to preserve the idea of an independent judiciary. The front-end, ostensibly, remains secure.

Judges, judgements, jobs: The back-end of judicial independence

Judiciaries, though, may be undermined in other ways. Notice a few facts. The government is the largest litigant (party to a case) in the Supreme Court and the largest employer of retired Supreme Court judges.³Judges retire on their 65th birthday.⁴ Various legislations require retired judges to be appointed to a range of bodies: National Human Rights Commission, National Green Tribunal, Telecom Disputes Settlement and Appellate Tribunal, Inter-state Water Dispute Tribunals, etc.

In 2013, Piyush Goyal, a leader of the Bharatiya Janata Party and currently a member of the Modi Cabinet, expressed unease about the growing opportunities for judicial post-retirement appointments in Indian laws. “We have gone too far in creating post-retirement avenues for judges”, he commented on social media. “Desire of a post-retirement job influences pre-retirement judgments.” This is a shared intuition, and politicians across party lines have grumbled about it. Some judges too have argued against such appointments, insisting that the practice compromises judicial independence. Clearly, a routine policy of post-retirement appointments heightens the likelihood of corruption: a quid pro quo between the judges and the government.⁵ Judges may pander to the government by deciding cases in its favour, and the government may reward them with post-retirement jobs. This undermines judicial independence. Does it happen in India, as many allege? Our analysis puts this intuition to the test (Aney et al. 2017).

Data: Supreme Court judges and cases, 1999-2014

We focus on judges who retired from the Supreme Court during 2000-2014. We collected all their reported judgements involving the Union of India (UOI). A team of research assistants coded whether the decisions favoured the UOI or went against it. We collated additional information from these decisions when they were delivered, the lawyers who appeared in the cases, etc. This latter data allowed us to assess the relative importance of cases, especially from the government’s perspective. For example, a case can be regarded as highly important if the Attorney General or the Solicitor General represented the government in court. We limited our attention to cases decided by division benches (two-judge benches) because the Supreme Court (usually) randomly allocates cases to such benches based on expertise. (Larger benches are created at the discretion of the Chief Justice.) We also collected data on whether judges in our sample period secured a post-retirement job from the government in power at the time of retirement.

A correlation: Favour the government, get a job

We find that deciding important cases, that is, cases where the Attorney General or the Solicitor General appears, in favour of the government is positively correlated with the likelihood of gaining post-retirement positions. The effect is large in magnitude⁶and suggests that authoring one additional judgement in favour of the government in an important case increases the likelihood of such appointment by around 13-15%.

Although suggestive, this result is not convincing evidence of judges changing their decisions to secure such positions. It is possible, for example, that judges who are ideologically aligned with a government (or its policy agenda) decide cases in its favour. And once they retire, the government appoints them to post-retirement offices in the knowledge that these judges will follow the government line in their second innings as well. Notice that such appointments are not rewards for deciding in favour of the government; instead, they indicate an ideological alignment between a judge and the government. So, this behaviour – of governments identifying like-minded judges for retirement positions – cannot be labelled as corruption. And that leads us to our main question.

The main finding: How incentives affect decisions

Among judges who get such positions with the UOI, it takes around 11 months after retirement to get one. Some judges retire shortly before an election; others do not. Judges retiring long before an election enjoy a sense of assurance: the government in power on the date of their retirement would have sufficient time to reward them with jobs. This creates two groups of judges: those with strong incentive to pander (retiring long before a general election) and those with weak incentives to pander (retiring shortly before such an election). We find that judges with strong incentives indeed are more likely to rule in favour of UOI in important cases.⁷ In particular, take a case at the 75th percentile of importance that is being decided by a bench where both judges have weak incentives to pander. Such a case is around 30% more likely to be decided in favour of UOI when we replace a weakly incentivised judge with a strongly incentivised one.

Although two judges decide a case, usually one of them authors the judgement. Authorship is a powerful signaling device; it heightens judges’ claims to judgements and makes them more visible. We find that judges with strong incentives are more likely to author favourable judgements in important cases. This finding fits with the correlation mentioned earlier between the authorship of favourable judgements in important cases and appointments to post-retirement roles. Put differently, judges who are more likely to be rewarded post-retirement are indeed more likely to author favourable judgements, and this behaviour appears to be rewarded by the government. In short, Goyal’s intuition appears correct: “Desire of a post-retirement job influences pre-retirement judgments.”

Protecting the judiciary from judges: Is there a solution?

Several suggestions have been made to fix this problem of incentives. The most obvious one is to discontinue the practice of appointing retired judges to government positions. But neither governments nor judges appear keen on this. Another widely mooted suggestion is to introduce a cooling-off period before judges can be appointed to such position. The idea is to weaken both the memory of pre-retirement pandering towards a government and the value of post-retirement rewards for judges. A similar rule already exists for retired bureaucrats. Former Chief Justice R.M. Lodha has suggested a policy of continuing to pay retired judges their salary or an equivalent pension to reduce the attraction of such jobs. But financial reward is only part of the attraction. Judges often find these posts alluring because of the influence they can wield on policy matters. And judges motivated by monetary incentives have more lucrative opportunities available to them. (Arbitration is the obvious example.)

Another way to solve this problem is to make the appointment to these roles mechanical based on the retirement dates and judges’ subject-matter expertise. The Supreme Court’s registry already assigns subject-matter expertise to judges to operationalise the computerised allocation of cases. That subject-matter expertise can be mapped to possible post-retirement jobs. Once this is done, retiring judges with the appropriate expertise may be offered jobs based on their seniority and vacancies as they arise. This de-links the decisions they make in the Court with their future job prospects.

Still, this mechanical process leaves open the challenge of political appointments – of the kind Mr. Ranjan Gogoi has been offered. He is not the first judge to receive a political appointment. The Court is rightly concerned about ensuring that appointments to the Supreme Court are apolitical. However, preserving judicial independence also requires thinking deeply about the right institutional design that ensures post-retirement appointments do not create perverse incentives in judicial decision-making.

Notes:

For the views of the former CJI RM Lodha on post retirement jobs, see here and here. The practice of awarding jobs to judges across different countries is discussed in Chapter 3 of Ginsburg (2015).
See Ramseyer (1998) for a discussion of the idea of judicial independence and a survey of the literature.
See Rajagopalan (2018) for a discussion of this phenomenon.
In principle, they could voluntarily retire early but this happened only once in our sample of 72 judges.
We use the definition in Bardhan (1997) of corruption as the use of public office for private gain, rather than the narrower definition of corruption as the sale of government property for personal gain in Shleifer and Vishny (1993). Surveys of the literature on corruption include Banerjee, Hanna, and Mullainathan (2012), Pande (2007), and Sukhtankar and Vaishnav (2015).
On average, a judge authors the judgement in four important cases during their tenure in the Supreme Court.
We create an index of ‘importance’ using the first principal component of four case-level variables: the number of senior counsels, lawyers, attorneys general, and solicitors general.