Post Retirement Jobs of Judges: Conflict of Interest

The appointment Justice Sunil Gaur, the retired Delhi High Court judge who delivered judgments in the cases which the opposition criticized as political witch-hunt as stirred up a new controversy.

Other Similar Controversies

  • Earlier this year in January 2019 Justice AK Sikri was forced to turn down an offer from the government to nominate him to an international tribunal post-retirement because of a controversy linking the move to his siding with the government over CBI chief’s removal.
  • Former CJI P Sathasivam’s appointment as governor of Kerala was caught in a controversy after his retirement in April 2014. One of his last judgments was clearing a BJP leader in a fake encounter case.

Post-retirement appointment of Judges

The report released by think tank Vidhi Centre for Legal Policy in 2016 had made the following observations:

  • Of the last 100 judges who retired from the Supreme Court as of 12 February 2016, 70 took up post-retirement jobs.
  • One of the reasons for appointments in such large numbers is that several laws mandate the appointment of judges in certain positions. About 56% of all the appointments studied were made because the law required it, implying a structural problem.
  • Thirty-six per cent of all the appointments was also made by the central government exclusively to several bodies including tribunals, commissions, ad hoc committees and other government positions like Lokayuktas.

Recommendations by Law Commission

The first Law Commission had looked at the issue of post-retirement appointment of judges by the governments and had made the following recommendation in its 14th report in 1958:

“The practice of judges looking forward to or accepting employment under the government after retirement was undesirable as it could affect the independence of the judiciary. We, therefore, recommended that a constitutional bar should be imposed on judges accepting office under the union or state governments.” But such a bar was never put in place due to absence of any such law.

Conflict of Interest

The possible conflict of interest in ruling on cases against the government or government functionaries if a quid pro quo is involved has been talked about in the past.

Justice Krishna Iyer’s observation demonstrates how the prospect of post-retirement employment can severely damage judicial independence. He states “Judicial afternoons and evenings are sensitive phases, the incumbent being bothered about post-retiral prospects. The executive plays upon this weakness to bend the integrity or buy the partiality of the elderly brethren.”

Way Forward

Even though a complete ban may not be feasible in the near future a two-year wait should be mandatory for judges after they retire and before they are appointed to judicial commissions or tribunals. Further over a course of time, the laws that require tribunals and commissions to be headed by judges should be scrapped to uphold judicial integrity and independence.

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