From The Bench To The Ballot Box- A Constitutional Vacuum

On March 7th, 2024, former Calcutta High Court judge, Abhijit Gangopadhyay formally became a member of the Bharatiya Janata Party (BJP), after resigning from his position as judge of the Calcutta High Court, five months before his date of retirement, writing to the President Droupadi Murmu, Chief Justice of India DY Chandrachud, and Chief Justice TS Sivagnanam of the Calcutta High Court. 

Being inducted into the party, sitting beside BJP leaders such as Suvendu Adhikari & Sukanta Majumdar, Justice Gangopadhyay became the first High Court judge in India to give up his position to enter into the field of politics, and his departure from the judiciary has raised concerns about judicial propriety intermingling with the ballot box. 

Earlier, there have been two noteworthy instances of active Supreme Court judges resigning their positions for a role in politics, including former CJI Justice Subba Rao in 1966, and more recently Justice Baharul Islam in 1983, who resigned his position to contest the Lok Sabha polls in Assam. Other judges such as Justice Rama Jois also joined political parties, but much after retirement.

However, what far distinguishes Justice Gangopadhyay's case from those who came before him, is perhaps the timing of his relinquishment of his Constitutional duties. Indian voters are set to go to the polls in the upcoming months. At such a time when political allegiances are openly being changed, a sitting judge, walking away from his duties as an enforcer of the constitutional rights of litigants to take up the baton of politics has raised many concerns about judicial propriety.

While many judges have joined politics years, or even decades after retirement, what stands out in Justice Gangopadhyay's case is that he did not mince words about his mutual admiration with the BJP on the 5th of March- the very evening of his resignation as a High Court judge. Although the ex-judge candidly stated that he had not passed any adjudicatory orders for a week leading up to his resignation, there have never been any instances of sitting judges openly admitting and following through on their political affiliations only hours after resigning from their position. 

Justice Gangopadhyay's comments on him approaching the BJP, and the BJP approaching him may be seen as a clear indication by the former judge, that representatives of the political party were in contact with him before the date of his resignation, thereby raising concerns on the sanctity of the adjudicatory process, with the benefits of political mileage looming large. 

Notably, since his elevation in 2017 and during his time on the Bench, Justice Gangopadhyay has been critical of the Trinamool Congress's ruling government in Bengal. The BJP has notably been a major political rival for the incumbent TMC government in West Bengal in the recent past. 

Over a substantial period, he held determination over all matters concerning primary education, as well as cases against top State government officials, and TMC leaders, including MP Abhishek Banerjee in the infamous cash-for-jobs scam, and has been vocally critical against the 'misrule' of the TMC in West Bengal during his time as judge. He had even directed for the CBI & ED to question Banerjee, in an order that was stayed by the Supreme Court. 

He was also responsible for being one of the two judges overseeing the court-monitored probe by the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) into the recruitment scam.

His criticism of the incumbent state government was there for all to see when he conducted a TV interview- as a sitting High Court judge, where he spoke about the 'misdeeds' of the TMC and against recruitment scam accused MP Abhishek Banerjee. The interview made headlines across the country, and landed up before the Supreme Court, leading to CJI DY Chandrachud observing that "sitting judges of High Courts have no business conducting television interviews."

Recently, he created another judicial controversy, when he ignored a stay order passed by a division bench presided over by Justice Soumen Sen, whom he accused of political bias. Faced with this unprecedented situation in the High Court, the Supreme Court had taken up the matter suo moto, prompting the Calcutta High Court Chief Justice to re-assign all matters on primary education which were to be heard by him. 

From the Bench to the ballot box- a Constitutional vacuum 

While the wave of post-retirement benefits for certain retired High Court and Supreme Court judges have passed muster due to the absence of well-defined cooling-off periods, a sitting High Court judge resigning his position to officially join the Opposition party in the State within two days of such resignation has caused understandable unrest across the legal and political fields.

Such unrest may have also been compounded by Justice Gangopadhyay's declaration during a press conference hours after his resignation, that both he had approached the BJP and the BJP had approached him in the week leading up to him leaving his post.

While the Constitution, in Article 217(2) lays down the eligibility for High Court judges as follows, it doesn't lay any restrictions on individuals with political affiliations from being appointed as judges.

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 at least 10 years held a judicial office in the territory of India; or (b) has for at least 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 legislation to regulate the entry of judges into politics or prevent them from accepting post-retirement benefits, the closest we have come to the same is perhaps through the 14th Law Commission Report (1958) which recommended that judges should be barred from accepting employment with the Union or the State.

Interestingly, even if such a recommendation had been implemented, Justice Gangopadhyay's decision to join a political party as a member, days after resigning as High Court judge, would not have fallen within its ambit.

Maintaining an illusion of propriety through mandatory cooling-off periods 

'Pre-retirement judgements are influenced by post-retirement jobs'- Former Union Minister Arun Jaitely

While the highly unlikely scenario of a sitting judge resigning his seat to join a political party would always cause a great disservice to the concept of judicial propriety, an illusion of the same in such cases may be maintained through mandatory cooling-off periods.

Rare as it may be, this is the third time in independent India's history that such a drastic move has been made by a member of the judiciary, and perhaps the introduction of mandatory cooling-off periods for judges who resign or retire from taking up political or executive positions would help maintain that illusion of propriety.

Keeping in mind the plethora of powers a High Court may exercise under its plenary jurisdiction in Article 226 of the Constitution, it becomes all the more important to maintain a semblance of propriety, albeit an illusion- to ensure the separation of powers between the executive and judiciary is prima facie maintained. 

While cooling-off periods are mandated for high bureaucrats as well as a standard part of any contract involving high-level executives in corporate setups, bringing them in through Acts of Parliament may be the only way to ensure that justice is not just done, but seen to be done.

Also Read: Justice Abhijit Gangopadhyay: Calcutta High Court Judge With Penchant For Courting Controversies