Active After Sunset: The Politics of Judicial Retirements in India*
| Author | Shubhankar Dam |
| DOI | http://doi.org/10.1177/0067205X221146335 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Article
Federal Law Review
2023, Vol. 51(1) 31–57
© The Author(s) 2023
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DOI: 10.1177/0067205X221146335
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Active After Sunset:The Politics of
Judicial Retirements in India*
Shubhankar Dam*
Abstract
Indian judges retire, but not into inactivity. Many pursue careers in government-appointed
roles. Scaffolded around the concept of institutional corruption, this article interrogates the
history, law and politics of the retirement careers of judges in India. Three questions take
centre stage in this analysis: What types of careers do retired judges pursue? Why do they
pursue them? How do judges’post-retirement ambitions impact their pre-retirement deci-
sions? The cumulative analysis suggests that the Supreme Court of India, not specificjudges,
benches or decisions, is institutionally corrupt. The system of post-retirement jobs cycles like
an economy of influence that is weakening the institution’s effectiveness, especially its capacity
for impartial adjudication in matters that involve governments. But the Indian court’sper-
formance and its public reception also reveal unique attributes that can enrich our general
understanding of institutional corruption and separate the concept’sessentialfeaturesfromits
auxiliary ones.
Received 13 November 2021
I Introduction: The Chief Justice Who Became A Lawmaker
A few months after he retired from the Indian Supreme Court in mid-November 2019, Ranjan
Gogoi, the forty-sixth Chief Justice of India (‘CJI’), became a member of Parliament.
1
The Narendra
Modi government invited him to the Rajya Sabha, the Upper House of the Indian Parliament. The
250-member House includes 238 (indirectly) elected and 12 (government) nominated members.
2
Appointed for their knowledge of —or experience in —‘literature, science, art, and social
* Professor of Public Law and Governance, University of Portsmouth. I am grateful to Madhav S Aney, MP Singh, Phil Thomas
and a few others (who prefer not to be named) for reading previous versions of the article. The usual rejoinder applies.
1. Arunachalam Vaidyanathan, ‘Former Chief Justice Ranjan Gogoi Nominated To Rajya Sabha By President’,NDTV
(online,17 March 2020) <www.ndtv.com/india-news/former-chief-justice-ranjan-gogoi-nominated-to-rajya-sabha-by-
president-kovind-2195802>.
2. Constitution of India art 80(1) (‘Indian Constitution’).
service’, nominated MPs are often dismissed as political cronies. On 24 March 2020, livid op-
position benches walked off crying ‘Shame! Shame!’just as the former CJI began reciting his (new )
oath of office.
3
The nomination unleashed a maelstrom of criticism. Critics alleged two types of wrongs. One
group suggested that Gogoi, as CJI, had sold out. He delivered decisions favourable to the Modi
administration in return for a post-retirement job.
4
In other words, it alleged that the CJI had been
corrupt in the classic sense: he abused his public office for private gain. Most legal systems classify
such conduct as crimes.
5
The former CJI punched back, brashly defending himself in a series of
interviews.
6
His judgments, he reminded his audience, involved other judges. Because two or more
judges congregate to hear cases in the Supreme Court, (illicit) deals with ministers could work
only if a majority of judges agreed to them. If he was ‘corrupt’, then so were the judges who
shared benches and decisions with him. He also mocked the idea of a deal because the alleged pay
off —a nominated seat in Parliament —was too piddly. If his seat in Parliament had been some
kind of post-retirement package, Gogoi asked, ‘Would I have settled for membership of the Rajya
Sabha?’
7
He demanded that journalists grant him ‘a better sense of proportion’.
8
His new post
offered meagre emolument: ‘Your package is less or equivalent to the post-retirement [pension]
package of a CJI, correct?’he said. ‘You get accommodation which is four stages below what you
got as the CJI. Give me some credit’, he told a journalist.
9
Another group asserted a different type of wrong. Perhaps the former CJI had delivered lawful
and impartial decisions. But accepting a nominated seat invited misgivings about them.
10
It
prompted doubts about judges’integrity and the independence of the judicial process.
11
Awarding
judgments in favour of a government and then settling on its payroll post retirement risked
damaging the court. CJI Gogoi’s actions, in other words, this group alleged, harmed the judiciary,
especially the Supreme Court.
Notice how the two groups differed. One —the former —cast Gogoi as venal: a judge who
traded his decisions for a retirement post. His victims were litigants who (unjustly) lost in his court.
The second group cast Gogoi as honourable and upright, it neither doubted his decisions nor alleged
any injury to litigants in his court, instead, it focussed on the harm, a loss of trust, his actions had
inflicted on the Supreme Court (and the judiciary in general). The first claim is undeniably an
3. TNN, ‘Ranjan Gogoi takes Rajya Sabha Oath amid “shame on you”chant from opposition’,The Times of India (online,
20 March 2020) <www.timesofindia.indiatimes.com/india/ranjan-gogoi-takes-rajya-sabha-oath-amid-shame-on-you-
chant-from-opposition/articleshow/74721236.cms>.
4. The Wire Staff, ‘In Unprecedented Move, Modi Government Sends Former CJI Ranjan Gogoi to Rajya Sabha’,The Wire
(online, 16 March 2020) <https://thewire.in/law/cji-ranjan-gogoi-rajya-sabha-nomination>.
5. The Prevention of Corruption Act 1988 (India) (49 of 1988), s 7.
6. Raj Chengappa and Kaushik Deka, ‘If I wanted a sinecure for my judgments, why would I ask for just a Rajya Sabha
seat?’,India Today (online, 27 March 2020) <www.indiatoday.in/magazine/interview/story/20200406-if-i-wanted-a-
sinecure-for-my-judgments-why-would-i-ask-for-just-a-rajya-sabha-seat-1660091-2020-03-27>.
7. Shubhankar Dam, ‘Second Innings’(February 2021) The Caravan 62, 67 (‘Second Innings’).
8. Ibid.
9. ‘Ex CJI Ranjan Gogoi: My Nomination is service to the country,not a post retirement package’,LatestLaws.com (online,
22 March 2020) <www.latestlaws.com/latest-news/ex-cji-ranjan-gogoi-my-nomination-to-rajya-sabha-is-a-service-to-
the-country-not-a-post-retirement-package/>.
10. Liz Mathew, ‘Ex CJI Gogoi has “compromised principles of independence, impartiality of judiciary”: Justice Kurian
Joseph’,The Indian Express (online, 22 March 2020) <https://indianexpress.com/article/india/ex-cji-ranjan-gogoi-rajya-
sabha-kurian-joseph-6318957/>.
11. Y K Kalia, ‘Why post retirement jobs for judges is a bad idea?’,Tehelka (online, 30 March 2020) <http://tehelka.com/
why-post-retirement-jobs-for-judges-is-a-bad-idea/>.
32 Federal Law Review 51(1)
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