21% of Supreme Court judges who retired in the last 5 years took up post-retirement posts

One of the biggest prediacaments for a Supreme Court judge crops up not during their tenure at the top court, but after they demit office.

Whether judges should hold an official post after retirement is a topic that has been debated over the years. While some frown upon the trend since it may encourage a culture of sycophancy that affects the independence of the judiciary, others seen nothing wrong with it.

In fact, the government has always stated that such roles require judicial personnel of the highest integrity and that nothing in the Constitution prohibits employing retired Supreme Court and High Court judges who are considered suitable for the purpose.

In this piece, we look at how many retired judges of the Supreme Court have taken up constitutional or statutory posts over the past five years and what judges themselves think on the issue.

Out of 28 judges who have retired in the last half-decade, 6 judges have been granted constitutional or statutory appointments. They are:

Justice Adarsh Kumar Goel

Date of retirement: July 6, 2018

Date of appointment post-retirement: July 6, 2018

Justice Goel was appointed as chairperson of the National Green Tribunal on July 6, 2018, the same day he retired from the apex court. 

Justice Arun Mishra

Date of retirement: September 2, 2020

Date of appointment post-retirement: June 2, 2021

Justice Mishra, who held the post of an apex court judge for over six years, was appointed as the chairperson of the National Human Rights Commission, almost a year after he retired.

Justice Ashok Bhushan

Date of retirement: July 4, 2021

Date of appointment post-retirement: November 8, 2021

After demitting office on July 4, 2021, Justice Bhushan was appointed as Chairperson of the National Company Law Appellate Tribunal on November 8, 2021. 

Justice Hemant Gupta

Date of retirement: October 16, 2022

Date of appointment post-retirement: December 22, 2022

On December 22, 2022, the Central government appointed Justice Gupta as Chairperson of New Delhi International Arbitration Centre (NDIAC), a body established for the purpose of creating an independent and autonomous regime for institutionalized arbitration.

Justice S Abdul Nazeer

Date of retirement: January 4, 2023

Date of appointment post-retirement: February 12, 2023

After retirement, Justice Nazeer is now serving as the 24th Governor of Andhra Pradesh.

Former Chief Justice of India Ranjan Gogoi

Date of retirement: November 17, 2019

Date of appointment post-retirement: March 19, 2020

Justice Gogoi was nominated to the Rajya Sabha by President Ram Nath Kovind. The former CJI took oath of office as a Member of Parliament in Rajya Sabha in presence of chairman of Rajya Sabha.

One of the most debated post-retirement appointments in the history of the Supreme Court was that of former CJI Ranjan Gogoi, who was nominated as a Rajya Sabha member within six months of demitting office.

While speaking at an event, the former CJI clarified his position, stating,

“If a judge is true to his functions (during his tenure), post-retirement is okay. It depends on individual to individual…”

Gogoi further commented that there are three kinds of retired judges, relevant to the issue at hand. One such category, Gogoi said, were “retired activist judges” who “immediately after retirement say many things not said while in office”, often to do with freedom of speech and the judicial system.

Another category, he said, involves judges who do professional independent work including commercial work and arbitration. Finally, there are judges who perform post-retirement engagements.

While this is the case, Gogoi had commented,

“You talk about post-retirement engagements as compromising judicial independence. What about the other two categories?”

While there is no specific rule barring judges from accepting such posts after retirement, fourteenth Law Commission Report, headed by Indian jurist MC Setalvad, recommended that judges should not take up post-retirement jobs from the government.

Significantly, several judges of the apex court have in the past avowed not to take any post-retirement jobs, including Justice Jasti Chelameswar former CJIs JS Khehar, RM Lodha and SH Kapadia.

Justice Lodha had also presented a radical proposal to then Prime Minister Manmohan Singh, seeking to usher in a system under which all Supreme Court and High Court judges would be given an option 3 months prior to retirement to either get full salary (minus other benefits) for 10 more years after their retirement, or get pension as fixed under the law.

Only those who opt for full salary would be empanelled for selection for posts that require retired Supreme Court or High Court judges. Such judges who opt for full salary would not be allowed to take up any private work, including arbitration, Justice Lodha had suggested.

During the farewell ceremony of former CJI Dipak Misra, then Attorney General KK Venugopal had weighed in on the topic.

He observed that judges should be allowed to continue adjudication, given the breadth of their experience. Speaking at the event, Venugopal remarked,

 “I do not agree to that idea that judges should not accept post-retirement jobs. Years and years of experience in judging would be thrown away one fine day by that.”

Venugopal's observations were made in the context of a statement issued by Bar Council of India (BCI) Chairman, Manan Kumar Mishra two days earlier. Mishra had requested the former CJI to refrain from taking up any post-retirement jobs, following the lead of Justices Chelameswar and Kurian Joseph.

In a recent interview with Bar & Bench, Justice MR Shah clarified that he would not take up any such posts.

"I have my own reasons why not to be in these roles after the Supreme Court of India," Justice Shah had said.

However, Justice Indira Banerjee while speaking with Bar & Bench had stated that there was no bar on judges taking up such roles.

"I do not think there is any bar on a judge doing anything post-retirement. Whether there should be a cooling-off period or not, as of now there is no law in this regard. Like, there was no one to head the National Company Law Appellate Tribunal (NCLAT), and now Justice Ashok Bhushan is heading it. He is a very good judge," she had said.

Justice Hemant Gupta, who is now heading the New Delhi International Arbitration Centre (NDIAC), while speaking to Bar & Bench stated that he will continue to be within the realms of the judiciary.

"Having worked for 42 years with the judiciary, I cannot do anything else but work relating to judicial determination," he said.

One of the more recent examples of a judge refusing to accept a post-retirement post was Justice V Ramasubramanian. CJI DY Chandrachud revealed that he had attempted to persuade Justice Ramasubramanian to accept a position as a tribunal head, but the judge expressed that he wasn't too keen on doing so.

Speaking at the ceremonial bench proceedings on the last day of his office, Justice Ramasubramanian stated that he wants to remain as "a free person untrammelled by the duties of a judicial office."