Introduction :- 

A report by Vidhi Centre for Legal Policy pointed out that as many as 70 out of 100 Supreme Court retired judges have taken up assignments in the
many tribunals and commissions.

Since 1950, there have been 44 Chief Justices of India who have accepted post-retirement jobs.  More than 30 judges were appointed within one year of their retirement. About seven were appointed even before they retired.

Practices Worldwide :-

USA: No Supreme Court judge retires lifelong. Done to prevent conflict of interest
UK: Supreme Court judges retire at the age of 70. No law stopping judges from taking post-retirement jobs but no judge has taken such a post.

Why the judges should accept post retirement jobs?

• Legal knowledge: The valuable experience and insights that judges acquire during their period of service cannot be wasted after retirement.
• No bar: Constitution doesn’t bar them from accepting post retirement posts.
• Statues lay down conditions: These posts are generally constitutional or of quasi-judicial bodies, whose laws more often than not mandate that only retired judges can occupy them.

Why judges should not accept?

• Separation of powers and judicial independence: Justice should not only be done, but seen to be done. Here, accepting and offering post retirement jobs bridges the constitutional distance which executive and judiciary needs to have, creating the perception of bias. This hampers judicial independence when positions are taken within a short time of retirement or accepted before retirement.
• Conflict of interest- Positions at tribunals and constitutional bodies create a conflict as Government itself is a litigant and appointment authority at the same time. The first Law Commission, headed by M C Setalvad, had recommended that judges of the higher judiciary should not accept any government job after retirement.
• Politicisation of judiciary: The acceptance of post-retirement jobs leaves newly retired judges open to political criticism from the opposition, who use it to cast aspersions on the Court, the Judicial system, and the judgments and orders passed by these judges while in office.

What can be done to strike a balance?

• Cooling off period: Many have suggested that there should be a minimum cooling-off period of 2 years post retirement.
• Increase age of retirement: Unlike in many other countries, a judge of the higher judiciary in India retires at a comparatively young age and is capable of many more years of productive work.
• Enact a law: to set up a commission made up of a majority, if not exclusively, of retired judges to make appointments of competent retired judges to tribunals and judicial bodies. In the meantime, judge  themselves can fill the legislative void by giving suitable directions.
• Amend existing laws: which mandate the appointment of retired judges in tribunals and other quasi-judicial bodies e.g. NHRC, NGT etc.
• Envisioning a transparent process: Former Chief Justice R M Lodha, had suggested that before a judge retires, the government should provide option of either being a pensioner or continue to draw existing salary. If they opt for pension, government jobs are out but if they opted for full salary, that name should be put in a panel. When a vacancy arises, these persons can be considered and the process becomes devoid of allegations of appeasement, favouritism etc.
• Amending the constitution: by incorporating a provision similar to Articles 148 (barring CAG from post retirement job) or 319 (similar provision for UPSC members).