Another ‘nazeer’ of post-retirement reward?

The appointment of former Supreme Court judge S. Abdul Nazeer as a governor of a state after barely a month after his retirement by the Narendra Modi government has raised eyebrows. Justice Abdul Nazeer (‘nazeer’ means example) had retired from the apex court in January this year.

Of course, the government is free to appoint any person who meets the basic requirements as a governor. But post-retirement assignments for supreme court/ high court judges and bureaucrats immediately after their superannuation are seen as some sort of reward by the incumbent government for the ‘services’ (or favours?) rendered by them while holding key positions.

Sceptics had created a brouhaha when former chief justice of India Ranjan Gogoi was nominated to the Rajya Sabha by this government immediately after his retirement from the apex court. Justice Gogoi headed the bench that delivered the Babri masjid-Ram janmabhoomi verdict that paved the way for building a Ram temple at the site of the Babri masjid in UP’s Ayodhya. It may be a coincidence that Justice (retd) S. Abdul Nazeer too was on the same SC bench.

CJI Gogoi had also heard the Rafale fighter jet scam case—a crucial case in which the Modi government faced charges of promoting cronies at the expense of PSUs and had failed to convince the Parliament that its dealings with Dassault were clean. The bench headed by CJI Gogoi got some material in a “sealed envelope” from the government and gave it a clean chit.  

Justice Nazeer, incidentally, heard the equally controversial demonetisation case this year. There court’s decision to take up the matter six years after the disaster raised hopes among the public and the opposition that at least the government will be forced to finally explain the rationale behind the decision that dealt a body blow to the country’s thriving informal sector.

Many hoped that the government will be asked to explain as to how many objectives of demonetisation it has achieved, and if not, why? Of course, the damage could not be reversed but at least the government could be made to feel that it is accountable to the country and its institutions and that a scrutiny by the apex court would discourage it from such misadventures in the future.  

However, contrary to the people’s hope that the apex court would at least pull up the government over the various lacunae in the process and question the very objective of the exercise, the constitution bench headed by Justice Nazeer gave a candy to the government in a 4:1 judgment. Only one judge dissented.  It was a great relief to the government that had been cornered over the issue.

Are there more examples?

Justice Ashok Bhushan, another judge on the Ayodhya bench, who retired in July 2021 was made head of the National Company Law Appellate Tribunal later that year.

Justice (retd) Arun Kumar Mishra, who retired as the Supreme Court judge in September 2020 was appointed the eighth chairperson of the National Human Rights Commission (NHRC) of India.

Justice Arun Mishra presided over a string of crucial cases in which an adverse judgment could have a far-reaching consequences, including the Sahara-Birla diary case, the Haren Pandya murder case and the land acquisition judgment. He recused himself from the judge Loya death case after a controversy.

No wonder then that the common people see the appointment of judges with suspicion.

Govt pursuing carrot and stick policy?

The suspicion of a quid pro quo in such appointments gains ground when one sees that the government has not been so kind to the judges who delivered unfavourable judgments. Justice Akil Kureshi is a prime example.

Justice Kureshi, despite being the second most senior high court judge, was denied elevation to the Supreme Court despite recommendation by the collegium. In 2010, Kureshi remanded Amit Shah, then Gujarat home minister, to police custody in the Sohrabbudin fake encounter case.

Contrast it with the quick approval by the government to the appointment of Lekshmana Chandra Victoria Gowri as a judge to the Madras High Court. Gowri, according to the social media account purportedly belonging to her and speeches available on YouTube, is the general secretary of the Bhartiya Janata Party (BJP)’s Mahila Wing.

One may also recall the hurried ‘midnight’ shunting out of Justice S. Muralidhar of the Delhi high court who had pulled up the Delhi Police during the 2020 north-east Delhi communal riots.  

How to satisfy the public perception?

However, there is still a way that these judges can prove the sceptics wrong—through their impeccable conduct in their new positions. The NHRC is a key institution and there is a lot that the body can do to protect the rights of the marginalised and the oppressed. Ditto for other tribunals/ panels where judges can stand up for the interest of the public and make erring authorities fall in line.

Similarly, the judges can enrich and elevate the debates in the Rajya Sabha by their deep knowledge and experience. They can also ask incisive questions of the government and make it accountable. Sadly, that is not happening.

As a governor, Justice Nazeer has a chance to put the babbling tongues at rest by acting impartially. Over the last few years, several individuals have brought much infamy to the institution of governor through their improper conduct.

(Views are personal)