Shivani Tripathi
Introduction
The year of 2025 witnessed a fierce debate on the issue of post-retirement appointment of judges. The debate was highlighted by contrasting views of two former Chief Justices of India. On 2nd August 2025, Justice D.Y. Chandrachud, while speaking at an event in Mumbai, expressed his thoughts on the appointment of judges to legislative positions and how it affects judicial independence. In his opinion, judges can bring a great deal of experience to the legislative bodies, but they are kept away from these roles because of hesitation around this practice shaped largely by negative perception and portrayal by the public and media. Contrary to this, addressing a roundtable on 3rd June 2025 at the Supreme Court of the United Kingdom, Justice Bhushan Ramkrishna Gavai, made a significant declaration: he has pledged to refuse any post-retirement appointment offered by the Government of India. He contended that the practice of accepting post-retirement assignments undermines public confidence in the judiciary and invites scrutiny. The matter has attracted renewed attention due to the post-retirement appointments of several Supreme Court and High Court judges to political, quasi-judicial, and academic positions.
Historically, there have been numerous instances where judges have accepted post-retirement engagements and, in some cases, have even prematurely resigned from office to avail themselves of such opportunities. Justice Baharul Islam was nominated as a member of the Rajya Sabha in 1983 by the Central Government led by Indira Gandhi. Justice P. Sathasivam was appointed Governor of Kerala in 2014. Justice Adarsh Kumar Goyal was appointed Chairperson of the National Green Tribunal just on the day of his retirement from the Supreme Court in 2018. This was followed by a widely criticised nomination of Justice Ranjan Gogoi to the Upper House in 2020, within four months of his retirement, which was widely disparaged in the political and legal spheres. Justice Abhijit Gangopadhyay even resigned from the Calcutta High Court to join the Bharatiya Janata Party in 2024.
In light of the growing debate, this article seeks to examine the issue through multiple constitutional and ethical lenses. The author aims to approach the issue by firstly delving into the existing legal framework, followed by reference to constitutional discourse surrounding separation of powers and judicial independence. Subsequently, the line between constitutional utility and ethical concerns is discussed, where competing arguments on the practice are put forward. Afterwards, the discussion weighs on the commission reports, judicial decisions, and comparative practices on the concerned issue. Finally, the piece concludes by reflecting on judicial morality and proposes reforms aimed at balancing constitutional necessity with the imperative of preserving judicial credibility.
The Legal Position
There is no definitive legal bar prohibiting retired judges from accepting post-retirement appointments. The Constitution of India expressly disqualifies certain functionaries, such as the Comptroller and Auditor General and Chairman of the Union Public Service Commission, from holding any office under the Government of India or the State after their retirement. Additionally, Article 124(7) of the Constitution restricts retired Supreme Court judges from practising before any court or authority within India, while Article 220 imposes similar restrictions on retired High Court judges, barring them from practicing before any authority except the Supreme Court and other High Courts. However, no constitutional provision or statutory enactment expressly prohibits retired judges from accepting political or governmental appointments after demitting office.
The Supreme Court of India adopted the Restatement of Values of Judicial Life in 1997, which serves as a code of conduct for the judicial fraternity. It dictates ethical standards for judges that comprise impartiality, isolation, public insularity, avoiding conflicts of interest, preventing familial association, not accepting financial favours, and being conscious of public scrutiny, among others.
The Constituent Assembly Debate
The issue of re-employment of judges was raised during the framing of the Indian Constitution by the Constituent Assembly. K.T. Shah proposed a motion to include a provision in the Constitution to bar anyone who has been a judge of the Supreme Court or any High Court for five years continuously from being appointed to executive positions under the Government of India or the Government of any State. This motion also garnered support from Shibban Lal Saxena, as he was of the opinion that the temptation of higher appointments will give a bypass to the executive to abuse this practice by interfering in the judicial discretion of judges. This motion was opposed by the Drafting Committee Chairman B.R. Ambedkar. He argued that the realm and functioning of the executive and judiciary are different; therefore, the opportunity for the executive to influence the judiciary is meager. Drawing comparisons to the United Kingdom and the United States, he observed that the judges retire at a very late stage of life, and they are also entitled to a pension at par with their salary, whereas, in India, judges get a meager pension. Thus, he said that it will be unfair to prevent the judges from post-retirement opportunities. The motion was thus not considered further.
Between Constitutional Utility and Ethical Concerns
Supporters of this practice argue that post-retirement appointments serve as an effective means to utilise the vast experience and judicial expertise of retired judges for the benefit of the Government and the public at large. They contend that the knowledge accumulated over years of judicial service can significantly enrich the existing pool of talent within public institutions. Furthermore, it is emphasized that the relatively early retirement ages of Supreme Court and High Court judges—65 and 62 years, respectively—result in the early departure of capable individuals who are still well-positioned to contribute meaningfully to public life. Some also cite a shortage of qualified personnel for statutory posts as a probable reason.
But in contrast, this practice is a direct attack on the independence of the judiciary. The independence of the judiciary is the core of any democratic setup, and it is the reason for people’s faith and confidence in the institution. In order to maintain the rule of law in society, the judiciary needs to be independent and impartial. The practice of judges taking up post-retirement assignments marks a serious blot on the nobility and sanctity of the judiciary as a system. This kind of favour affects the judicial mind of the judges and brings an element of bias while deciding on the cases. A judge does not remain impartial anymore and decides in favour of the government of the day, which would award him with an appointment. Addressing Dr. Ambedkar’s views on meagre pension of judges, the material realities of the judiciary have significantly changed and today, judges receive comparatively generous pensions, official accommodation, staff support, and other post-retirement entitlements, thus, financial insecurity that once justifies flexibility no longer carries the same weight.
Additionally, this practice is in stark violation of the principle of separation of power among the executive, legislature, and judiciary. Articulated by Montesquieu, the concept may mean three different things: “(a) that the same persons should not form part of more than one of the three branches of Government; (b) that one branch of government must not interfere with or control with the work of another; (c) that one branch of government should not exercise the functions and powers of another.” The core objective is to ensure that each organ of the government operates independently within its designated sphere. While an absolute separation of powers may not be feasible, a functional or working separation is both necessary and expected in a constitutional democracy like India. Article 50 also obligates the State to separate the judiciary from the executive. Post-retirement appointments to political or executive roles undermine this foundational principle by blurring the boundaries between the judiciary and the other branches, effectively transforming the judge into a political functionary or executive officer. This arrangement becomes even more problematic when it is an opaque process, and there are no guidelines on which such appointments are made till now.
As Lord Hewart said, ‘Justice should not only be done but also be seen to be done’, the government being a party to many cases before the court will definitively raise questions in the minds of the common man that if the judges are expecting to be employed in the future, they would be biased and prejudiced in their decisions. A reasonable likelihood of bias is also wrong. A negative public perception of judges is not a healthy practice.
The Case for Legislative Action and Ethical Restraint
The First Law Commission’s Fourteenth Report on Reforms of Judicial Administration, led by M.C. Setalvad, utterly noted that it is undesirable that judges should look forward to other government employments after their retirement. The commission has advised a constitutional bar on the further employment of judges, as it would affect the independence of the judiciary.
The Supreme Court was faced with a similar question and dismissed a public interest litigation (PIL) in Bombay Lawyers Association v. Union of India (2023) that sought to mandate a two-year cooling-off period for retired judges before they could assume post-retirement positions. The Court held that prescribing such a restriction fell outside the scope of its judicial competence under Article 32. Nonetheless, the Court acknowledged the significance of institutional safeguards and highlighted the need for legislative intervention to regulate post-retirement appointments, thereby leaving the matter either to the individual conscience of the judges or to parliamentary enactment.
While in India, the practice of post-retirement appointment of judges is legally permissible, in United Kingdom judges do not typically enter Parliament or executive office immediately upon retirement and appointment to public bodies are governed by transparent processes overseen by independent commissions and constitutional conventions. In United States of America, the judges enjoy life tenure under Article III of the Constitution, implying that such later appointments are rare and would attract severe scrutiny. This suggest that India’s vulnerability lies not in constitutional text alone but the absence of institutional safeguards and conventions.
Conclusion
In the words of Ronald Dworkin, “Judicial independence and judicial morality are the two wheels of a chariot.” A judge does not have to follow judicial ethics and morality only during his judgeship but even after retirement. Though the Indian Constitution does not prohibit post-retirement jobs for retired judges, therefore, such appointments are constitutionally permitted, but do such post-retirement jobs justify the noble concept of constitutional and judicial morality? The answer is no. In the past, several top court judges, like Justice SH Kapadia, Justice RM Lodha, and Justice Kurian Joseph, have declined post-retirement jobs.
The practice of the appointment of judges should be discouraged. Some experts can be appointed to the concerned positions. If there is a need, then there should be a mandatory cooling-off period of two to three years before these appointments. A transparent and independent selection mechanism should be framed, which not only involves the executive but also the collegium panel. Moreover, it should be the work of the mental conscience of a judge that he should neither expect nor accept such favours. The oath that the judges take before they assume office consists of the phrase “without fear,” which underscores the obligation to discharge judicial duties free from fear or favour, and a judge should uphold these commitments even beyond retirement because once he becomes a judge, he always stays a judge.
The author is a Research Scholar, pursuing Ph.D. from the Faculty of Law, Banaras Hindu University.
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