Shauryaveer Chaudhry and Devang Pandey

Shauryaveer Chaudhry and Devang Pandey, members of the Editorial Board at the Law School Policy Review, host Professor Shubhankar Dam, a distinguished constitutional law scholar and Chair of Public Law and Governance at the University of Portsmouth. The conversation centres on his core argument that post-retirement appointments function as forms of institutional corruption, subtly shaping judicial behaviour through systemic incentives rather than overt misconduct. He critiques the elevation of judges as uniquely virtuous actors and questions the reliance on retired judges in tribunals and commissions. The discussion also explores appointments, public trust, and constitutional design.

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Session 1

Shauryaveer Chaudhry: Hello, everyone. Welcome to yet another podcast of the Law School Policy Review. I’m an editor, Shauryaveer Chaudhary, and I have alongside Devang Pandey, who’s a shadow editor of the Law School Policy Review. Today, we are joined by Professor Dam.

Our guest for today, Professor Shubhankar Dam, is a distinguished Constitutional scholar and public expert, whose work significantly reflects the contemporary debates on judicial institutions and Constitutional governments in India. He currently serves as a Chair of Public Law and Governance and Associate Head of Global Engagement at the University of Portsmouth and previously held the prestigious B.R. Ambedkar Chair at the Columbia University in New York. These also reflect the themes for today’s podcast, which is concerned largely with the design and functioning of Constitutional institutions, with a particular focus on the judiciary. Our podcast today is titled Benches, Benefits and Beyond: Examining how life of the bench shapes judicial behavior, independence and public trust. Professor Dam will share his insight on the ethical question that arrive after a judge leaves the bench. This discussion will include the politics of judicial retirement, its impact on the Constitutional framework of judicial independence, as well as the impression it leads on the public and the media about the integrity of the judiciary. For this, we will also delve into contemporary questions about this Constitutional institution. I’ll now allow Devang to start by asking questions.

Devang Pandey: Hello, Professor. We had the pleasure of engaging with your scholarship while preparing for this podcast and by studying this post retirement phase of judges and the employment which they offer. Your work suggests that the concerns around it are not just about individual misconduct, but they are more of a systemic phenomenon based on ethics. Similar concerns were raised in the Constitutional Assembly where some members warned that governments might be able to tempt judges with post-retirement positions. So, my question is more of a two-parter: first, that how such incentives can affect the perceived legitimacy of the Courts and secondly, regarding the many reforms which have been suggested to address this. In your view, what approach could meaningfully strengthen judicial independence by also allowing the system to benefit from the expertise of a retired judge?

Professor Shubhankar Dam: Thank you Shauryaveer and Devang for having me. It’s wonderful to interact with you. All right, so your question has at least three parts.

Let me outline a response by first explaining what I see as different types of judicial corruption. This argument about post-retirement jobs is often made in the language of corruption. But there are at least two types of judicial corruption and it’s important for us to distinguish between them.

First, some corruption is what you might call “personal” corruption. This is the most obvious version of corruption. Imagine a judge who takes a bribe and delivers a particular judgment. This is the most standard form. For a variety of reasons, this kind of corruption is also quite invisible, at least at the appellate level, meaning the High Courts, and the Supreme Court. But separate from personal corruption is “institutional” corruption. Here, the focus isn’t on any individual decision or transaction arising from that decision. Instead, the focus is on a set of incentives that create what you might call a type of misalignment that enables miscarriage of justice.

Now, post-retirement jobs are one such incentive, but there are many other incentives that operate within India’s judicial system. The important thing to understand is that these incentives typically act as an influence in the background. While they may influence judicial behaviour, the influence needn’t be intentional. In fact, it is entirely possible that the impact of these incentives is often unintentional. Psychologically, it is likely that judges themselves are unaware of it.

So, as I explained in one of my articles, imagine a case that requires an interpretation of a statutory provision. Now imagine there are five possibilities. Five ways in which one can interpret that provision. Two of these interpretations are closer to the view the government prefers, one is neutral, and the remaining two are anti-government, i.e., interpretations the government opposes. Now, what I’ve argued is that post-retirement jobs act as an influence, and consciously or otherwise, they make judges more amenable to the type of interpretation that is more pro-government. As I said, they may do this intentionally, or they may do this unintentionally. But that influence is discernible, especially over time and over a large set of cases. And that’s what I have called institutional corruption. It’s not about any particular judge; it’s not about any particular bench; it’s not about any particular decision. Instead, it’s a general incentive that has the capacity to misalign.

So, your question was about the perceived legitimacy of the court in the face of such incentives. If you have a system where an incentive is constantly present and there is at least a possibility — I’m putting it in the mildest form possible — that these incentives interfere with a judge’s capacity to decide freely and fairly, you ought not to be surprised if the public questions the decisions and wonders if they are the product of extraneous reasons.

I should point out that post-retirement jobs are only one kind of incentive. If you’ve read Prashant Reddy and Chitrakshi Jain’s amazing book on trial courts in India (Taareekh Pe Justice: Reforms for India’s District Courts), you will see that they make the argument that increasingly trial court judges are hesitant to offer bail, because it seems to impact both their capacity to remain in the job, and to not be hit with charges of corruption. So, Reddy and Jain show in their book that the judges who have given bail, are more likely to either be removed from office, or investigated for a range of charges, including corruption.

In that context, it’s not surprising that today in India, the Supreme Court is repeatedly having to remind trial court judges that you can give bail, that it’s in your power to do. But you can see from Reddy and Jain’s book that there is a reason why trial court judges are so hesitant to give bail. It’s not an accident. The system has a set of incentives that makes it difficult for trial court judges to give bail.

Now, the second part of your question had to do with reforms. Specifically, you asked me what approach one could meaningfully take to strengthen judicial independence while allowing the system to benefit from the expertise of retired judges. I disagree with the premise of this question.

If you look at the manner in which this question is framed, it suggests that there is something specific, something unique, something valuable about retired judges. That we ought to benefit from. That there is something special or distinct about this category of people. I disagree. I think India has done itself an enormous disfavour by creating a system where we seem to attribute all sorts of wonderful values to one class of people, namely High Court and Supreme Court judges. And somehow, we expect them to uphold these values in a way that no other person in India is able to.

As I said, I disagree with this framing. We are doing a disfavour to the system ourselves. We should not elevate judges to a class that is, in some sense, beyond us. Judges are not superhuman beings. They are part of Indian society. They reflect all of the good and ill of Indian society. They do not come from a different galaxy. And to somehow expect that judges are in some sense special, unique, or radically different from the general population, I think, is a disservice. And I’ll explain to you why I say it’s a disservice.

Today in India, I cannot think of any controversy where the solution isn’t to immediately appoint a judge-led commission to investigate the matter. I repeatedly ask myself: How did we get to this point where we seem to think that the only people capable of investigating a matter, assessing basic facts, providing some thoughtful reflections, are either sitting or retired judges? This is harmful for India. We seem to attribute mistrust and all sorts of negative, problematic values to everyone: politicians, elected or otherwise, bureaucrats, lawyers, academics. So, apparently, everybody in India is compromised, except judges. I don’t think this is good for any democracy. Surely, we should not be trying to create and maintain a system where the only people who seem to be the repositories of some wonderful values are people who are “outside” the democratic/electoral system.

So, you asked me how can we maintain judicial independence while continuing to benefit from the expertise of retired judges? My response to you, in a very long, convoluted way, is to say that we should stop our obsession with retired judges. We should stop thinking about how to benefit from the expertise of retired judges. Instead, we should ask: How do we create a system that incentivizes elected members of Parliament, who can, at least, occasionally, behave in non-partisan ways. We should ask: How can lawyers, academics, bureaucrats do so? How can we design a system where such people can demonstrate the positive values we now associate only with judges in India.

Shauryaveer Chaudhry: Professor, just to follow up to that. Firstly, then who do you believe should be leading these commissions to lead the investigations? Should it be lawyers? Should it be parliamentarians? Should it be the police officers? Who should be the one leading these? That’s the first part. And the second is that another issue that comes up with this is that the judges who want to work beyond their retirement age do not have any other avenue barring arbitration. A lot of judges do go into arbitration, but other than that, what can they realistically do after their retirement age, which is 65 in the Supreme Court, 62 in the High Court. I read that there was a Venkatachaliah report in 2002 that suggested increasing the retirement age and the 114th Amendment Bill, was also to raise the retirement age of judges to 65. Particularly for the lower Courts where I believe the age is 61-62. I remember reading that other countries as well have a high retirement age. Do you feel that increasing the retirement age of judges could help, or what are other avenues they realistically have to get into post their retirement?

Professor Shubhankar Dam: Thank you. Again, these are very valid questions. So, take the question regarding commissions: Who should lead them? So, look, there are two kinds of commissions. Some commissions are statutory tribunals: National Green Tribunal; Company Law Tribunal, etc. And then there are these commissions of inquiries which are set up occasionally when sporadic controversies arise. At least from sitting in the UK and observing the functioning of a whole range of tribunals here, it’s not at all clear to me why we have reflexively come to the conclusion that the independence of these commissions depends on the presence of retired judges. And I find this logic, this approach, baffling. Because if the argument is that retired judges pander to governments to get these post-retirement jobs in the first place, how is it that suddenly upon becoming the chairperson of a tribunal, they somehow regain their independence? I don’t understand the logic.

So again, to get back to the question, if not the judges, then who? I don’t have a simple answer to that question. All I can tell you is that even the UK has a large network of tribunals. They are not manned by retired judges. These are judges that the system appoints, the bureaucracy appoints. And they seem to be able to do perfectly fine. The way we appoint judges to trial Courts and district Courts in India, either through some years of experience or exams or a mix of both, represents, for me, the most obvious template.

Now, your second question had to do with retirement age. I think there is a strong argument for increasing the age of retirement. That is sensible. How far it should go is not clear to me. Clearly, there were some proposals made to increase it to 68 for Supreme Court judges. I think some review commissions may have even mentioned 70. But here is what I can tell you: no matter how much you increase the age of retirement, ultimately, judges do have to retire. There is no getting around this. The real question is whether the system pays enough, especially in retirement. Whether India’s retirement packages are large enough to be able to sustain a reasonably respectful, comfortable retirement is something that requires investigation.

Also, bear in mind that some of the desire to be involved in these tribunals, commissions, etc. isn’t always about pay. Sometimes, the desire comes from the need to be part of the system, so to speak. I mean, put yourself in the position of a High Court or Supreme Court judge. Having held a very public post where your presence really matters, they suddenly transition to a life where they’re practically invisible and immaterial. Psychologically, surely that is not easy to come to terms with.

So sometimes, judges pursue these things not because the financial incentives are important, but simply because they’re conditioned to be part of a system where they matter. I don’t think there is a simple solution for that.

So, I think reform can only begin when other players in the system start believing that they too can behave in non-partisan ways. That they don’t always have to make themselves beholden to some interest or the other. Unless we can do that, I don’t think there is a simple bureaucratic solution that you can design to remove this incentive or influence from the system. I don’t think this is just about identifying some creative set of rules and policies. I think it requires regenerating a sense of belief amongst a whole host of characters and their capacity to behave in impartial ways.

Shauryaveer Chaudhry: Thank you for that, Professor. I feel that this is a surely, really interesting point. Devang, could you please proceed with asking the next question?

Devang Pandey: Yes, of course. Firstly, thank you for your much enlightening answer. You raised a point about trial court judges not being able to go ahead with bail as easily, and I believe I remember former CJI Chandrachud mentioning the same once in a public speech. It is a recognised problem for sure. And I believe my second question has been somewhat answered through the first response, but I would still like to ask it.

You argue about a system of economic influence in your piece about the politics of judicial retirements in India. This “economy of influence” where systemic incentives shape judicial behaviour — this idea resonated with me with the broader debate about judicial appointments as well. For instance, in India, we have had this debate over NJAC versus the collegium. And the collegium is often perceived as something which favours a certain class. So, do you think that judicial appointments in India might also reflect this “economy of influence”, and is this different from the “economy of ignorance”, which you also have posited?

Professor Shubhankar Dam: Thank you. This is an insightful question. Look, clearly something interesting is happening with how the collegium functions in India. But I am not entirely convinced that this is something drastically new. I’ll be the first person to admit, perhaps I’m wrong. But in the last, say, 5 odd years, perhaps a bit longer, I increasingly see analysis/reports that suggest the collegium is operating under an influence. The argument seems to be that the collegium is making recommendations that favour the government. Or that the collegium is trying to satisfy the government’s preferences through its recommendations. Now, I’m sure there is some influence. I don’t think there is any doubt about it.

To me, the real question is: Is this influence new or different in some sense? Is this something different from what has gone on, say, roughly, between 1999 and 2014? And, in that context, I’m not sure the collegium is doing anything particularly new. Like I said, there may be an element of newness. I think we are talking about “degrees” here rather than “type”.

Let me put it this way. And this is a rather crude way of putting it, but I suppose, for the purpose of this conversation, this will suffice. It is possible that there are two big worldviews out there regarding the Indian Constitution. On one hand, roughly speaking, the “Congress worldview” of the Constitution and the “BJP worldview” of the Constitution. Like I said, these are simplistic binaries. The world is far more complicated than this, but let’s just work with this for the purposes of our conversation.

If you accept the premise, is the collegium suddenly functioning radically differently than before? I’m not sure it is any different and here is why. If collegium judges previously were already predisposed towards the Congress worldview of the Constitution, then there was no need for them to do anything extra — anything additional — in recommending judges and engaging with governments through their recommendations. Because, as I said, the operating system was the Congress worldview of the Constitution. Those present in the system, the collegium judges especially, already shared that worldview and, unsurprisingly, they recommended judges that shared that worldview. And India had 10 years of Congress or UPA governments. So the room for clashes, from what I can see, was minimum (or unnecessary).

However, India has witnessed significant changes in electoral politics in the last 10 years. That has provoked differences of opinion about the type of person who should be elevated to the Supreme Court. And it’s surely not a surprise that the government wants more people as judges who share the BJP worldview of the Constitution. So, the clashes that you now see — or what is being framed as the collegium submitting to government demands, the collegium trying to appease the government — are the result of a conflict between the judges from the previous “system” jostling with the current government. But, as I said, this so-called appeasing, so-called giving into, doesn’t look any different from what went on for the previous 15 years, roughly between 2000 and 2015.

The reason we never noticed the clashes — or perhaps the reason many people didn’t want to notice — is because the collegium and the government were, broadly speaking, part of the same umbrella. So, there was no real need for clashes. My hunch is that, as newer judges — potentially sympathetic to the BJP worldview — come into the Supreme Court, these “clashes” will likely disappear.

This is a very convoluted way of saying that influence has always been a feature of collegium recommendations. I do not think the collegium has ever functioned without the government’s invisible hand of influence. The reason we are noticing it more now, in my view, is that there is a difference of worldviews between the collegium and the government. As more judges come into the Supreme Court, under the existing collegium, over time, this clash will disappear because you will have a collegium that shares the BJP worldview of the Constitution.

Session 2

Shauryaveer Chaudhry: Thank you for the previous session, Professor. There was obviously a network issue and we’ll be resuming today. My question to you is, Professor, that courts often say that public confidence is essential to judicial authority. At the same time, democratic institutions must remain open to criticism. Where should the line be drawn between legitimate criticism and alleged defamation of the judiciary? How must this be viewed in the light of the ban on the NCERT textbook referring to institutional corruption in the judiciary?

Professor Shubhankar Dam: That’s a difficult question. The NCERT textbook crisis is not surprising to me. If you look at the last 20 years, the sole criticism the Supreme Court has received is that the only people who are apparently able to talk about corruption in the Supreme Court or the judiciary in general, are retired Supreme Court judges. And that seems to be the only acceptable discussion. Anyone else who has had the “audacity” to talk about corruption has faced severe consequences. I can give you several examples.

Transparency International did a report in Jammu and Kashmir and that institution was held up for contempt.

So, I’m not surprised by how the court has behaved with regards to the NCERT textbook controversy. I do think that a lot of the responsibility for this rests on the shoulders of scholars, journalists, and even politicians, who for the last roughly 3 decades, have encouraged and applauded almost everything that went on in the Supreme Court in the name of “judicial activism”. I suspect part of the reason they were so happy to applaud these decisions is that the court was producing verdicts that a lot of people liked. The decisions may have lacked proper doctrinal foundations, ignored procedural constraints, etc., but that didn’t matter.

The decision in the NCERT case reflects that sort of lawlessness. It’s just that now the script has flipped. The court’s order to bar these authors from engaging with any sort of textbooks in India, and engaging with research that’s based on government funding, is so obviously unlawful and lacks any basis in statute or precedent. But I’m not surprised that the court has produced such a verdict. As I said, I think it’s the direct result of the doctrinal lawlessness that has gone on for 25-30 years.

I think those who are now beginning to criticize the court have a lot to answer for. Bear in mind that there were contrary voices. Not everyone applauded the Supreme Court’s approach in the 1990s, aughts, etc. I certainly remember those times. Anyone who had the audacity to question the court’s approach, to point out that doctrines matter, rules of statutory interpretation matter, procedures matter, and that we should not ignore all of these things just to get the sort of verdicts that appeal to us, was dismissed as a “conservative” or someone who didn’t care about people’s suffering.

I think those people now have a lot to account for because the lawlessness in the NCERT case is the latest example of that kind of doctrinal lawlessness. It’s rooted in that culture that became part of our judicial consciousness in the 1990s.

So, I think a strong element of public legitimacy that you began with rests in our ability to ensure that decisions have some degree of consistency, that courts take doctrines, rules of interpretation, and procedures into account, and don’t ignore these things simply because the outcome is inconvenient. When we become an outcome-driven court, then you ought not to be surprised that you have large sections of the people who think that law really boils down to judges’ whims and fancies, and there is really nothing else to it. So, I think if you want to maintain legitimacy, the court should take its own decisions, precedents, doctrines, and rules of interpretation seriously. Unless we do that, I think we are stuck in this cycle of lawlessness and lack of legitimacy.

Shauryaveer Chaudhry: Yes, Sir. Thank you for that. So, moving on to the next question, in “Active after sunset: the politics of judicial retirements in India,” your famous piece, you alluded to the dormancy of Article 128 in the 21st century. Is this just a matter of fact or is there any underlying reason for this?

Professor Shubhankar Dam: Dormancy is not a 21st century phenomenon. I’m inclined to say most, but certainly many, judges in the 1950s who retired from the Supreme Court came back to the court for varying durations. Some came back for a year; some came back for even longer than two years, if I recall correctly. But I think by the time we get to the mid-60s, that activity disappeared from the court. Sitting judges no longer seem to appoint retired judges either in the High Courts or in the Supreme Court. Now part of that is quite easy to understand.

Given that now there is a large group of High Court judges and Supreme Court lawyers who are competent to be appointed to the Supreme Court, it is not a surprise that retired judges are no longer appointed to the Supreme Court.

I should point out though, very recently, the Allahabad High Court, I think, passed an administrative order. I think this was a decision of the Collegium at the High Court level, where they recommended the names of a few retired judges to have their tenure extended, or more precisely, to be reappointed for a certain duration. I am not entirely sure if the government has accepted that recommendation.

Shauryaveer Chaudhry: Just to follow up on that, Professor, do you think that this action by the Allahabad High Court dives into the point we were making the last time about increasing the retirement ages? Is there an argument we can use here to kind of further that point or am I reading too much into it?

Professor Shubhankar Dam: You see, the structure of incentives that we talked about previously could potentially apply even to these retirements. After all, the Allahabad High Court in the last two or three years would have seen several retirements. And the question is why did the Chief Justice or the Collegium of the High Court level pick these three judges? Why not other judges? So, it’s difficult for me to see how you can get out of this cycle of incentives simply by reappointing judges who have retired.

There is clearly an argument to be made that at least the retirement age of High Court judges needs to be increased simply because 62, by any account, is a relatively young age for people to retire at.

I think the argument to extend the retirement age is very strong, but as I said previously, no matter where you draw the line, you still must have a retirement age. Ultimately, there is no easy solution to this question of incentives. What judges do as they come closer to retirement — or once they retire — is a question that won’t disappear anytime soon.

Shauryaveer Chaudhry: Our last question for today. Professor Pranav Verma’s work shows that the essential religious practice doctrine has placed the task of determining what counts as essential to religion with judges interpreting scriptures and religious practices themselves. At the same time, he has pointed out concerns about post-retirement appointments and the institutional incentive that may shape judicial behaviour in politically sensitive cases, particularly post-2014. Do these concerns strengthen the case for reconsidering the essential practices doctrine itself as a matter of constitutional law? Should courts continue to determine questions of theological essentiality? If no, then how may the court decide the level of intrusion and reform from within religion permissible under Part Three of the Indian Constitution?

Professor Shubhankar Dam: Thank you, Shauryaveer. That’s a very good question and I don’t have a simple answer. I’ll say two things about the question you posed.

So first, consider the argument about post-retirement jobs. I have read Pranav’s article. It’s a very good article. I must admit I’m not convinced about the connection between retirement jobs and the essential religious practices test.

I’m generally sceptical about claims that try to connect specific decisions to post-retirement outcomes. Any judge, whether a High Court judge or a Supreme Court judge, over their term in office, would have decided many matters. It’s hard for me to see how one gets to the conclusion that judges were given jobs because of some specific decisions. And the counterfactuals are quite easy to identify. Even in cases involving essential tests, there would have been multiple judges on these benches. Some would have gotten jobs, perhaps some didn’t get jobs. So, the claim that somehow judges came to these conclusions because they wanted jobs, and the government rewarded them with jobs because they delivered these specific judgments, is a claim that I struggle with. I think there are too many counterfactuals to conclude that that claim is, in some sense, robust.

Now so far as the essential religious practices test is concerned, whether we like the current version of the test or not, I don’t see how we can ever get to a point where a test is not needed. I don’t see a system where we can simply get rid of the very idea of essential features to decide what’s protected under religion.

Any person who comes to the court and raises an Article 25 claim will require a response from the state. People can come to the court with all sorts of bizarre claims in the name of religion. Unless you take a view that the moment someone raises an Article 25 claim — the moment someone says this is my religion and therefore protected, no matter how outlandish or bizarre the claim is, they must win — some sort of essential features test is inevitable.

Ultimately, judges will have to decide whether claims made by individuals or organizations can reasonably be said to fall within the scope of any religion. Let me give you an example. This is something that I’ve thought about for at least 20 years now. Imagine someone comes to the court and says that I belong to the “Church of the Gay Lord”. And the central tenet of this church is that LGBT people should be able to marry. Therefore, when the state prevents LGBT people from marrying, you are infringing on my freedom of religion, the freedom of my church to practice its tenets. If you don’t believe in an essential features test, then how would you respond to a claim like that?

Perhaps the manner in which the court has gone about implementing the essential features test is problematic. Perhaps it’s biased towards one religion, or gender within a religion. Maybe it ought to have a greater degree of understanding of what religions require, especially what minority religions require. But I do not see a system where you can get rid of the essential features test, because as I said, if you get rid of it, you will be stuck with a position where anyone who comes to the court and asserts an Article 25 claim will succeed because there is no other way to assess whether the claim someone is making is valid or not. The only other way to engage with questions of religion would be to use tests regarding “public order”, “morality” and “health”.

Shauryaveer Chaudhry: Thank you for that, Professor. I feel that this was a very enriching discussion for both Devang and me, and I’m definitely sure that our audience would enjoy watching such a discussion themselves.