Arguments against

♤ 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.

♤ Compromises the independence 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.

o It sends out the message that if a judge gives ruling in favour of the executive, he/she will be rewarded.

o More than being a reward for the retired judge, the offer of a plum post-retirement job, sends a message to judges who are still working.

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

♤ Integrity of the judges- the judges are expected to conduct themselves in such a manner even after their retirement so as not to create an adverse impression about the independence of judiciary.

o The judges are expected to work without fear or favour and remain above political divides or affiliation in their career.

♤ Erode people’s trust- The judiciary thrives on perception and faith. Such actions can shake people’s confidence and faith in the independence of judiciary.