Retired judges and government positions

The judges of the Supreme Court and the High Courts are appointed by the President. In this appointment order, there is no condition that they should not accept other government posts after retirement. This means that as a free citizen, there is no legal impediment for them to accept posts in the judicial commissions of the government, Lokayuktas, etc. Many judges have accepted such government posts after retirement. It is not correct to say that all those who have accepted such posts have succumbed to the influence of the government while holding the post of judge. Judges who were not ready to deviate from the law even a little have also accepted such posts. Although this is not wrong legally, some ethical issues may arise in this.

The public may suspect that these judges had consulted with any government emissaries about accepting government posts before their retirement. Although that suspicion may not be correct, it cannot be said that the possibility of such suspicion does not exist. Judges who were politically active while practising in the High Court and those who were not are appointed as judges. Therefore, if the party they worked for is in power when they retire, they are naturally more likely to get some posts. It is also not correct to interpret this as them taking a position in favour of the government when they were judges. At the same time, it is not unreasonable for them to contest as a candidate of any political party after resigning from their position as judges.

Justice Ganguly, a judge of the Calcutta High Court, resigned from his post and contested as a BJP candidate, which had led to major controversies in the legal field. Such controversies started since the then Nehru government had announced Justice Fazal Ali as the Governor of Orissa in 1952, just before he retired from the post of Supreme Court judge. The statement made by the Chief Justice of the Supreme Court on this issue the other day has led to discussions on this issue. The Chief Justice had strongly criticized retired judges for accepting government posts and contesting elections. He said that such practices would erode people's faith in the judiciary.

When a judge assumes a government position immediately after retirement, people will suspect that there may have been some interference behind the scenes. There will also be a misunderstanding as to whether judicial decisions have been influenced by the government positions that will be available in the future. This will affect the independence, credibility and impartiality of the judiciary. The Chief Justice clarified that he and many of his colleagues have publicly pledged not to accept government positions in view of this. It is also not right to completely eliminate the opportunity for retired judges to continue serving the country. Therefore, it is possible to consider introducing a condition that they should not accept positions for a fixed period of up to two years or so after retirement.