"There are two kinds of Judges: those who know the law, and those who know the Law Minister."
Coming from senior BJP leader Arun Jaitley, it would perhaps be easy to dismiss that as a glib remark, reflecting a callous disregard that politicians have for the preservation of exalted institutions that occasionally hold the political class to account.
After all, when it comes to taking down Constitutional authorities—be they the Comptroller and Auditor-General (CAG) or the higher judiciary—with the power of insinuation, everyone from Congress leaders to Mamata Banerjee to the BJP have shown themselves in recent times to be equally culpable.
But Jaitley isn’t just a career politician: he is a legal eagle, and in fact served as law minister in the NDA government. His generic and broad-sweep observations about the judiciary, therefore, come with the weight of anecdotal evidence. When he was law minister, Jaitley narrated, "I used to be afraid of meeting retiring judges for fear that they would hand me their bio-data."
Jaitley’s larger point was to establish how even higher judges, whose judicial independence rests entirely on maintaining an incorruptible distance from the government of the day, allowed themselves to be morally compromised by lobbying for cushy post-retirement sinecure postings on various commissions and tribunals.
In his estimation, he said, such a practice reeked of a cosy "jobs-for-the-boys" culture, placing judges potentially open to governmental influence, which on occasion led to "pre-retirement judgements" being "influenced by the desire of a post-retirement job".
BJP president Nitin Gadkari followed up Jaitley's remarks by observing that in some cases, Supreme Court judges were appointed to commissions even four months ahead of their retirement.
Indicatively, Justice Dalveer Bhandari was to retire on 30 September, but he resigned some five months earlier, after he was elected as a judge of the International Court of Justice, based in The Hague. Likewise, four months before Justice Mukundakam Sharma retired on 18 September 2011, he was cleared for appointment as chairman of the Vansadhara Water Dispute Tribunal.
To ensure the highest standards of judicial independence, and to avert even the faintest hint of governmental influence on the judiciary, Gadkari suggested a two-year "cooling off period" for retiring judges before they accepted such postings.
Jaitley’s and Gadkari’s argument in defence of ways of upholding judicial independence and accountability is not without merits, but Congress leaders’ reflexive response was to criticise them as completely over the top. Manish Tewari said he was "amazed" that a former law minister had made bold to make such a tendentious statement, and that in his opinion the judiciary should "look into it". As for Gadkari, "he has very little knowledge of legal affairs", Tewari said.
But beyond the political scoring points, there does exist a strong case for shoring up standards of judicial accountability, given the many recent instances of “jobs-for-the-judges” that have come to light. Indicatively, of the 21 Supreme court judges who retired since January 2008, 18 secured jobs in government commissions and tribunals, according to the Indian Express (details here). In many cases, judges accepted post-retirement appointments much before they formally demitted office, the report noted.
Of course, it is nobody’s case that each such appointment represents a reward for judicial pliability in the manner that Jaitley indicated when he said that pre-retirement judgements were influenced by the desire for post-retirement jobs. But to the extent that even the higher judiciary has been shown to be fallible and susceptible to the same human frailties, each of them gives cause for disquiet over the slippery slope on which judicial accountability standards are slithering.
Particularly in the context of the Congress’ history of securing a "committed judiciary"—in the manner that Indira Gandhi sought during the Emergency—anything that fails to measure up to the highest standards of judicial accountability risks tainting the overall judiciary.
Corruption in the higher judiciary—about which even Chief Justice SH Kapadia (who retired last week) has voiced disquiet—has in recent years given much cause for concern. Prashant Bhushan famously observed that half of the last 16 chief justices were corrupt (more here), for which exertions he was hauled up for contempt of court.
And although Indian judicial history also has some shining symbols of rectitude, the slide in the collective popular perception of judges ought to occasion greater efforts to uphold judicial accountability. Of course, one of the most regressive aspects that holds back this effort is the manner in which judges are appointed – by a collegiums of judges that, in effect, works like a cabal (more here).
Well-meaning suggestions have recommended that judges’ appointments be made transparent and formalised through the mechanism of an independent judicial commission, but the UPA government appears for now to be leaning in favour of greater executive authority over the appointment process.
But such an effort, if formalised, would again render the higher judiciary susceptible to governmental influence, which highlights the risk that Jaitley and Gadkari flagged on Sunday.
Justice Kapadia (retired) famously set the benchmark for the judiciary when he said that for the judges, "who were fond of giving lectures, the time had come to practice what they preach". He added, more telling, that "we need a clean man in black robes". As Jaitley’s provocative remarks reveal, that search has so far proved fruitless.