Trading gavel for Campaign Trail

One of the Constitutional premises of justice, is more of a semblance of preserving judicial propriety, albeit an Illusion - ensuring separation of powers between Judiciary and executive is prima facie maintained.

Recently, Former Judge Abhijit Gangopadhyay officially joined politics within 48 hours of remitting his office. There is nothing wrong in how he chooses to conduct himself post his resignation, and in fact, his desire to serve his home electorate is laudable and one wishes him the best for his new innings.

On 7th March 2024, Justice Gangopadhyay officially joined ranks in the Bharatiya Janta Party (BJP) just five months before his retirement. Seemingly, the move and the manner in which it was taken did raise a few eyebrows on the Judicial Propriety of judges. Some people disapprove this practice of the judges holding official posts after retirement, while others, including those in the government, believe such posts often require judicial personnel of the highest integrity and there is no constitutional bar to this effect.  Admittedly, Justice Gangopadhyay is not the first to remit office and join Politics. We have seen in the 1960’s the resignation of Justice K Subba Rao, Former Chief Justice of India, three months prior to his retirement. A staunch supporter of Civil Liberties, upon his resignation, he became the Opposition’s candidate for the presidential elections. Given the Indirect system of voting through electoral college, Justice Rao wasn’t elected as the ruling party pushed through its candidate. Perhaps a more recent instance being of Justice Baharul Islam in the 1980’s, a seasoned politcian having served two terms in the Rajya Sabha, he went to be appointed as a High Court Judge in his home state of Assam. Later, he was elevated as a Supreme Court Judge. He resigned five weeks before his retirement to be immediately appointed as a Lok Sabha election candidate thereupon, which ultimately did not happen so he came back as a Rajya Sabha member once again. This nomination of Justice Islam did raise questions about some of his Judicial decisions in politically sensitive cases. Justice Gangopadhyay may as well face similar scrutiny.

While the Constitution in Article 217(2) lays down eligibility to be appointed as High Court judges, it dosen’t lay any bar or restrictions in case of existence of any political affiliations.

Article 217(2) of the Constitution of India: “A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and - (a) has for atleast 10 years held a judicial office in the territory of India; or (b) has for atleast 10 years been an advocate of a High Court or of two or more such courts in succession.

While there don’t exist any norms or regulations regulating the entry of judges into politics or restraining them to claim post retirement-benefits, the closest we have come is the 14th Law Commission’s Report (1958) which recommended that Judges should be barred from accepting employment with the Union or the State. Although interestingly, even if this recommendation were to implement, Justice Gangopadhyay’s decision to join a political party days after his resignation, would still not fall under its ambit.

Juxtaposed with other instances on which I have premised above, what is peculiar in Justice Gangopadhyay’s case is that of him giving press interviews brazenly declaring his political inclinations. So much so that it’s almost as if he had used his Constitutional highchair to broadcast his foray into Politics. In such a press interview on the 5th of March 2024, the day of his resignation, we see that the BJP probably had been in correspondence with him even before his resignation. Now again, this raises doubts in the Judicial decisions on Politically sensitive cases heard by him.

One cannot expect justice from those who, on the verge of retirement, throng the corridors of power looking for post retiral sinecures. The Bangalore principles of Judicial conduct (2002) needs to be worked out again. Though expecting judges to stay away from all official posts after retirement, is, maybe too much to ask for. There may be posts for which they are uniquely qualified. But what can be done, is the introduction of cooling off periods, after their retirement and to offer a period of transition. Increasing the age of superannuation of judges can also be a possible solution. The ruling class would never dump from which they can take, so ultimately it is the prerogative of the Judiciary to fence this practice in the long run, the self-imposed discipline of self-restraint. The life of a judge does not really call for great acts of self-sacrifice; but it does insist upon small-acts of self-denial almost everyday. As the french philosopher Michel De Montaigne said, “Were I not to follow the straight road for its straightness, I should follow it for having found by experience that in the end it is commonly the happiest and the most useful track.”

Chinmay Madaan is a third year Law Student at National Forensic Sciences University, Gandhinagar.

The views expressed are Personal. Author reserves the right to depart from these views.