Delhi High Court in its recent decision in Common Cause v. Union of India decided on 11 December 2015 has directed Central Government to make provisions for restricting retired judges of Supreme Court and High Court from taking up any arbitration while holding constitutional and statutory posts. The direction came after a PIL was filled by Common Cause highlighting the issue of retired judges taking up arbitration while occupying constitutional and statutory posts. The bench comprising of two judges, G. Rohini, C.J and Rajiv Sahai Endlaw, observed that full time employee holding constitutional and statutory posts are not entitled to take up any another employment or vocation while arbitration constitutes employment. Court further added “a whole-time employee is expected to bestow all his time, energy and resources to the whole time employment and not to divert the same to any other job, work or vocation”. Bench showed concerned about the problem of impartiality that could arise as arbitrators necessarily require them to interact, in all possibility, with the same set of people / professionals who appear before them in their capacity as Chairperson / Member of the Statutory Body / Tribunal of which they are whole time office holder.
However after considering all the arguments and referring to the cases like Sukumar Mukherjee v. State of West Bengal (1993) 3 SCC 723, Dr Haniraj L. Chulani v. Bar Council of Maharashtra & Goa (1996) 3 SCC 342 Hon’ble High Court decided to respect the doctrine of separation of power stating that it is entirely in the domain of legislature to regulate the service conditions and directed the central to government to give special attention to the issue and make the appropriate legislation.