Why BR Ambedkar insisted judges should not be barred from cushy post-retirement jobs

On Friday, P Sathasivam, who retired as chief justice of India on 26 April, was sworn in as the governor of the state of Kerala. Although there is no bar against the selection of a former judge to a gubernatorial position, the appointment raises significant questions that strike at the heart of the independence of the judiciary.

The Congress, sitting in opposition, has alleged that Sathasivam’s selection is an act of reward—the judge presided over a bench last April that quashed a First Information Report implicating the BJP president Amit Shah in a fake encounter case in Gujarat. This blustering from the Congress might not contain any truth. But it also takes little away from the issues of propriety that arise when a recently retired chief justice joins the executive.

The independence of the judiciary was considered by the framers of India’s constitution to be of paramount importance chiefly because the functioning of an effective democracy required judges of the higher judiciary to remain free of any political influence. In the case of Indian democracy, this is particularly so, as the constitution vests in the country’s judges an enormous power. The Supreme Court of India and the high courts act as the final arbiters of constitutional disputes, and can overrule not merely ordinary law enacted by a legislature that enjoys popular will, but, after the Kesavananda Bharati case, also constitutional amendments, which in the courts’ view infract the “basic structure” of the constitution. The institutional integrity of the judiciary, therefore, requires the courts to enjoy the confidence of the public; society needs to see judges as bastions of justice, who will stay independent of government to uphold the people’s most fundamental rights.

As I wrote in my essay in the August issue of The Caravan, the constituent assembly’s members grappled at greatest length with the question of how to ensure an independent judiciary. “At first glance,” wrote the historian Granville Austin who chronicled the framing of the Indian constitution, “the Assembly’s debates on the Judicial provisions seem to have been disproportionately concerned with the administrative aspects of the judicial system.” But the heightened discussion on these seemingly routine issues—which concerned judges’ tenure, salaries, allowances and so forth—were prompted, as Austin observed, “by the desire to insulate the courts from attempted coercion by forces within or outside the government.”

Yet, while the significant attention that was placed on what appeared to be mundane concerns was well merited, the assembly was decidedly against barring judges from taking up executive appointments post retirement. On 7 June 1949, in a meeting of the constituent assembly, one of its members, Professor KT Shah moved a motion, which, if passed, would have prohibited judges of the Supreme Court or of any of the high courts, who had served for five consecutive years on the bench, from being appointed to any executive office, including the office of an ambassador, minister, plenipotentiary, or high commissioner, as well as of a minister in the government of India or under the government of any state in the union.

Professor Shibban Lal Saksena, who supported Shah’s motion, explained the need for such a prohibition thus: “if the temptation of being appointed to other high positions after retirement is not removed, it will also be liable to be abused by the Executive or by any party in power and they may hold out such temptations which might affect the independence of the judiciary. I personally feel that the amendment is very salutary and healthy ... I hope that somewhere in our Constitution the principle enunciated here will be embodied so that the judiciary may be above temptation and nobody may be able to influence it.”

The commission’s chairman Dr BR Ambedkar, however, rebuffed Shah’s suggestion, and ultimately the constituent assembly voted against such a proscription. “The judiciary to a very large extent is not concerned with the executive: it is concerned with the adjudication of the right of the people and to some extent of the rights of the Government of India and the Units as such,” Ambedkar argued. “To a large extent [the judiciary] would be concerned in my judgment with the rights of the people themselves in which the government of the day can hardly have any interest at all. Consequently the opportunity for the executive to influence the judiciary is very small and it seems to me that purely for a theoretical reason to disqualify people from holding other offices is to carry the thing too far.”

Ambedkar, it now appears, might have been surprisingly mistaken on this account. As the history of independent India has shown us, the Supreme Court and the high courts often sit on judgement over executive action. The courts are vested with the power to issue writs quashing executive decisions, and the government of the day, therefore, has a fundamental interest in how the judiciary functions. It was this enormous power wielded by the courts that prompted the Indira Gandhi-led government to launch a program in the 1970s aimed at creating a judiciary committed to government agenda.

It is unfortunate that the constitution contains no express bar against former judges accepting executive positions. In September 2012, the present finance minister Arun Jaitley had argued vehemently that judges of the Supreme Court and the high courts ought not to be eligible for jobs in the government after retirement. “In some cases the pre-retirement judicial conduct of a judge is influenced by the desire to get a post retirement assignment,” Jaitley wrote in a blog post. “However, we are still operating under a system where various tribunals and other quasi-judicial assignments are filled up with retired judges.”

To appoint a former CJI as a governor, to borrow Jaitley’s argument, could therefore serve as an even more destructive precedent than such quasi-judicial assignments. It tells the present members of the judiciary that if they toed the ruling party’s line, or if they took positions amenable to the government, they might be in the reckoning for plush post-retirement postings—the independence of the judiciary be damned.