By Sanjay Raman Sinha

Chief Justice of India BR Gavai has forcefully flagged the ethical dilemma of judges accepting post-retirement roles in government, warning that such practices can undermine public trust in the judiciary and create damaging perceptions of judicial bias and quid pro quo.

While speaking at a high-profile roundtable at the Supreme Court of the United Kingdom, Justice Gavai stated: “The timing and nature of post-retirement engagements could undermine the public’s trust in the judiciary’s integrity, as it could create a perception that judicial decisions were influenced by the prospect of future government appointments or political involvement.”

His comments, laced with candour and constitutional gravitas, reopen an area of judicial ethics that has long stirred unease in legal circles, but rarely received such direct criticism from the highest judicial office in India.

At the heart of the debate lies the principle of judicial independence. The judiciary is not merely one of the three constitutional organs—it is the ultimate interpreter and guardian of the Constitution. Judges are protected from executive influence through provisions such as fixed tenure, protection from arbitrary removal, and the evolution of the Collegium system.

Justice Gavai stressed the same in his UK remarks, saying:“There may be criticisms of the Collegium system, but any solution must not come at the cost of judicial independence. Judges must be free from external control.”

By invoking the spectre of “external control,” Justice Gavai implicitly questioned whether the lure of post-retirement appointments could compromise judicial neutrality. The growing perception that judges are pigeonholed as either pro- or anti-government—only to later accept positions that appear to validate these labels—fuels public suspicion.

This perception is further exacerbated by the visible pattern of high-profile judicial retirements followed by swift government appointments. Although the Constitution is silent on post-retirement roles, Article 124(7) does bar retired Supreme Court judges from pleading or appearing before any court or authority in India. However, it does not restrict their eligibility for government-appointed roles in commissions, tribunals, or statutory bodies.

This grey area prompted the Law Commission of India, in its seminal 14th Report (1958), to recommend an outright ban on post-retirement government employment for judges—excluding service under Article 128, which allows retired judges to be recalled to the bench temporarily. The report argued that such employment undermines the judiciary’s independence, particularly since the government is a major litigant.

Despite this, the recommendations have remained unimplemented. In December 2024, responding to an Opposition query, the centre clarified in the Rajya Sabha that there is no provision in the Constitution mandating a cooling-off period for retired judges before taking up such appointments.

This has intensified calls for either a formal cooling-off period or raising the retirement age of judges—currently 65 for the Supreme Court and 62 for High Courts—so as to remove the temptation of seeking post-retirement employment.

As legal scholar and US judge Richard Posner once observed: “Judges are less likely to decide cases with a view toward maximising their future career opportunities… the less of a future they have. We want judging to be a terminal job rather than a springboard to another career.”

Justice Gavai’s intervention may set a precedent. He revealed that he and several of his Supreme Court colleagues have taken a personal pledge not to accept any government positions after retirement. “This commitment is an effort to preserve the credibility and independence of the judiciary,” he said.

If upheld in practice, this could reshape judicial norms in India—and perhaps finally resolve what Justice Gavai subtly framed as the enduring existential dilemma of the Indian judge: “To accept or not to accept?”

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