A Politician Judge – Judiciary's Bane And Nobody's Gain

A judge may deal with politics, for the very Constitution is a political document. Sacrosanct as it is, it does engender many a political battle to be fought in a constitutional court's arena. But that judge dealing in politics! It had never been in the constitution makers' contemplation, perhaps. That happening—and, indeed, happening too frequently to anyone's comfort—imperils the institution. With neither purse nor sword, what else does a court have—except its moral integrity and neutrality to 'rule' over both the Executive and the Parliament? And that integrity and neutrality lost, how does this institution survive?

The 'cause of action' for the present piece is the resignation of a sitting Judge of the Calcutta High Court to join a political party, and contest the upcoming General Election. Abhijit Gangopadhyay (formerly prefixed with Justice) has, in my view, stirred the otherwise dormant debate of the role of a Judge of a Constitutional Court, and the desire to hold political office – what is rationalized as “a call to duty”.

The afterlife of a judicial career is restricted by Constitutional mandate in Article 124(7) for the Judges of the Supreme Court, and Article 220^[2] for the Judges of the High Courts. The former prohibits Judges who have held office in the Supreme Court “to plead or act in any court or before any authority within the territory of India”, whereas the latter restricts those in the High Court, “who have held office as a permanent Judge of a High Court” from pleading or acting in any Court, other than the Supreme Court or another High Court. Seervai called this embargo to be “very salutary”.^[3] Significantly, the post retiral role of Judges of the Supreme Court and High Court did captivate the attention and discussion in the Constituent Assembly. Dr. P.K. Sen expressed that a Judge had to be “free from fear or temptation and free from the allurements of holding some office in the executive line or in the political field”^[4] and desired that a “Judge who has retired will not be able to engage himself in any office of emolument under the Government is any field of activity…otherwise there is always the phenomenon of the Judge while in office aligning himself with a political party…”^[5] Jaspat Roy Kapoor proposed the following amendment to draft Article 103^[6]:

“No judge of Supreme Court shall be eligible for further office of profit either under the Government of India or under the Government of any State after he has ceased to hold his office.”^[7]

He also advocated for a complete bar on executive office for those who had held office as a Judge of the High Courts or the Supreme Court.^[8] Prof. K.T. Shah, while expressed “that there should be a constitutional prohibition against his employment in any executive office, so that no temptation should be available to a judge”, and proposed an amendment to that effect. He, however, was of the view that a Judge was free to resign in order to contest an election to the legislature.^[9] Shri. K. Santhanam, in response to the various members' view that Judges ought to be barred from accepting post retiral office, pointed out the practical difficulties that would arise from such a complete prohibition, and said it would be difficult for Commissions to function, and therefore proposed an amendment prohibiting a retired Judge from holding an office of profit, without express permission of the President.^[10] This amendment found the support of M. Ananthasayanam Ayyangar.^[11] In response to the amendments suggested, Babasaheb Ambedkar said that “the chances of influencing the conduct of a member of the judiciary by the Government are very remote”^[12] and that “there are very many cases where the employment of judicial talent in a specialized form is very necessary for certain purposes.” Dr. Ambedkar would justify his position stating “the relation between the executive and judiciary are so separate and distant that the executive has hardly any chance of influencing the judgment of the judiciary.”^[13]

The issue came to the forefront immediately with the first retirement from the Supreme Court in 1951 – that of the distinguished Justice S. Fazl Ali – who was appointed Governor of Assam. In his autobiography, the then Attorney General Motilal Setalvad wrote:

“The separation of the judiciary and the executive at all levels was an old and healthy demand which had been widely accepted and given effect to in many parts of the country. Was not the appointment of a Supreme Court Judge to a Governorship a clear negation of that principle?”^[14]

Later, as the Chairperson of the Law Commission, the issue was dealt with in the Fourteenth Report on Reforms in Judicial Administration in 1958. The Law Commission recommended:

“(11) The Judges of the Supreme Court should be barred from accepting any employment under the Union of a State after retirement, other than employment as an ad hoc Judge of the Supreme Court under article 128 of the Constitution.”^[15]

The Law Commission also recommended a similar embargo upon High Court Judges. The obvious concern in the Constituent Assembly, as well as the First Law Commission was the Judges must not be closet politicians.

Amongst the most well-known Judges to have resigned from office to contest public office was Chief Justice K. Subba Rao – who unsuccessfully contested as a joint opposition candidate in the 1967 Presidential Elections – a slight taint^[16] on an unblemished and unparalleled judicial career. He is not the only former Judge of the Supreme Court to have contested Presidential Elections. The two others were Justice H.R. Khanna^[17], who contested the 1982 Presidential Election, and Justice Krishna Iyer^[18] who contested the 1987 Presidential Election. Former Chief Justice of India M. Hidayatullah^[19] also served as Vice President of India between 1977 and 1982. Justice K.S. Hegde^[20] successfully contested the Lok Sabha Elections on a Janata Party ticket in 1977 (and became the Speaker of the 6^th Lok Sabha) – about 4 years after he had resigned from Judgeship upon being superseded for Chief Justiceship along with two other colleagues – in what was a momentous election for democracy in India bringing an end to the tyranny of the Emergency. Another notable Judge to resign and to take up immediate public life was Chief Justice M.C. Chagla, who resigned in 1958 and became India's ambassador to the United States, before joining Nehru's Government in 1963 – much to the chagrin of Motilal Setalvad who termed Chagla's “action was characteristic of the self-seeking attitude of many of our leading men”.^[21] In his own autobiography, Chagla would say that he never sought the appointment, and that it was Prime Minister Nehru's belief that the country would be best served if he accepted the office.^[22] Paradoxically, Chagla was a Member of the Law Commission which made the 14^th Report. Home Minister Pant stated in the Lok Sabha that the offer was a testament to Chagla's high character and independence, and also said that “(h)e has been well-known, above all, for his independence. If the Judge who had been given the post had been subservient or weak, there would be some pretext for saying that the Government wanted to encourage such a frame of mind or such an approach to judicial problems.”^[23] The justification of Pt. Pant for the appointment of Chagla to the Ambassadorship – the independent and, not subservient or weak test. A few extremely powerful political personalities had been Judges for a brief period, before resigning and taking up the political mantle. The all-powerful Law Ministers in the Indira Gandhi Cabinet – H.R. Gokhale^[24] and P. Shiv Shankar^[25], the former Deputy Chief Minister of Jammu and Kashmir – D.D. Thakur^[26], and the former Chief Minister of Uttarakhand – Vijay Bahuguna^[27] are examples of those who became a Judge for a short while and resigned office to take up political office full time – obviously not desirable for the public confidence in the perception of the independence of the judiciary. Amongst the most unbecoming was Baharul Islam – who served in the Rajya Sabha prior to his elevation to the High Court in 1972, was appointed to the Supreme Court nine months after his retirement from the High Court, and resigned from the Supreme Court before the completion of his term – to contest the Rajya Sabha elections.^[28] Similarly, Ranganath Misra – who served as Chief Justice of India and also enquired into the 1984 Anti Sikh Riots in the aftermath of the assassination of Prime Minister Indira Gandhi – became a Member of the Rajya Sabha by contesting on a Congress ticket, a while after he had retired. After Fazl Ali, Justice Fatima Beevi^[29] became the first to be appointed Governor of a State after retirement. More recently, Chief Justice Sathasivam and Justice Abdul Nazeer were appointed to Governorships, immediately after their retirement. Chief Justice Ranjan Gogoi was egregiously nominated to the Rajya Sabha – after a tumultuous and politically eventful tenure as Chief Justice of India – a nomination made by the President of India upon the say of the Government of the day. Gogoi would go on to even attack the sacrosanct basic structure doctrine in Parliament – perhaps a betrayal of his earlier avatar. There have been a number of Judges who have been appointed to Tribunals, Inquiry Commissions, etc., and have not been detailed here, for the reason that those appointments are not political offices – but statutory requirements within the adjudicatory process – the employment of judicial talent in specialized fields spoken of by Babasaheb Ambedkar.

With neither the sword, nor the purse, Hamilton said that the judiciary is perhaps the weakest organ – quoting Montesquieu on the power of the judiciary being “next to nothing” – and finding that “there is no liberty, if the power of judging is not separated from the legislature and executive powers”.^[30] What forms the basis of constitutional structure is not just the independence of the judiciary, but the perception of the people of that absolute independence. It is indeed concerning when Judges are closet politicians – a cautionary note Dr. P.K. Sen had struck to in the Constituent Assembly. Merely elevating the independence of the judiciary to being part of the basic structure would be futile, and incapable of negating the perception of a Judge holding political office soon after demitting judicial office meets the independent and, not subservient or weak test. The High Courts and the Supreme Court have an exalted position in our constitutional scheme, and if a person who holds such office does not enjoy the public confidence of impartiality on political ideology or motivation, the entire edifice on which the judiciary is built on, will crumble – and with it will go constitutional guarantees. Chief Justice Subba Rao delivered contemporaneously the most important constitutional judgment^[31] on the eve of his resignation, which makes one wonder whether he was in touch with political parties in the opposition while considering the case. Gangopadhyay has publicly said that he was in touch with a political party before his resignation. The question is whether such public political overtures by former Judges without a cooling off period does any good for the public perception – “justice should not only be done, but should manifestly and undoubtedly be seen to be done”^[32] in the words of Lord Hewart. It will be irretrievably damaging for the judiciary as an institution if every judgment by a person is questioned, simply because such person has demitted office as a Judge, and taken up a political office and aligned to a political party/ideology – the perception that would go out is, as stalwart Arun Jaitley pithily put it - “Pre-retirement judgments are influenced by post-retirement jobs.” What would perhaps be in order is a Constitutional Amendment putting an absolute bar on the holding of any constitutional office for a period of five years from demitting office – by retirement or resignation, to protect the independence of the judiciary – as was debated in the Constituent Assembly – as experience has taught us, is desirable. Neither the independence of the judiciary, nor the perception of that independence, are negotiable.

1. Author is An Advocate on Record, The Supreme Court of India.

2. A similar prohibition as Article 124(7) was originally envisaged for Judges of the High Court. However, this was amended by the Seventh Amendment to the Constitution in 1956 to as it stands today. ↑

3. H.M. Seervai, Constitutional Law of India, Universal Law Publishing Co. Ltd., 2014 Reprint, Volume 3, Page 2625 ↑

4. Constituent Assembly Debates, Volume VIII, Page 238 ↑

5. Constituent Assembly Debates, Volume VIII, Page 239 ↑

6. Draft Article 103 would become Article 124 of the Constitution. ↑

7. Constituent Assembly Debates, Volume VIII, Page 240. As an example, he referred to Justice M.C. Mahajan, who was a Judge of a High Court became the Prime Minister of Kashmir, and then again became a Judge of the High Court. See Page 239. Justice Mahajan would then become one of the first six Judges of the Supreme Court of India, before retiring as the 3^rd Chief Justice of India. ↑

8. Constituent Assembly Debates, Volume VIII, Page 240 ↑

9. Constituent Assembly Debates, Volume VIII, Page 240 ↑

10. Constituent Assembly Debates, Volume VIII, Page 244 ↑

11. Constituent Assembly Debates, Volume VIII, Page 255 ↑

12. Constituent Assembly Debates, Volume VIII, Page 259 ↑

13. Constituent Assembly Debates, Volume VIII, Page 260 ↑

14. M.C. Setalvad, My Life – Law and Other Things, Universal Law Publishing Co. Ltd., 2008 Reprint, Page 190. He would further write “Judges of the Supreme Court had from day to day to deal with the correctness and validity of the executive and legislative acts of the Union and State Governments and they would clearly be subject to executive influence if they looked forward after retirement to preferment as Governors or to any other executive office.” See Page 190-191. ↑

15. Fourteenth Report of the Law Commission of India – Reforms of Judicial Administration, Volume I, Page 56 ↑

16. Fali Nariman called it his “Achilles heel”, and said he was obviously in touch with political parties when in office. See F.S. Nariman, The Judiciary and the Role of the Pathfinders, (1987) 3 SCC J-1. ↑

17. He served as Law Minister under Prime Minister Charan Singh for 3 days before resigning. “The one thought that gnawed me was as to why should have I accepted the ministership when I could not face the strom resulting from the acceptance of the office.” See H.R. Khanna, Neither Roses Nor Thorns, EBC Lucknow, 2003 Edition, Page 130. ↑

18. Krishna Iyer was a Minister in the E.M.S. Namboodripad Government in Kerala before becoming a Judge of the High Court. ↑

19. Hidayatullah had the unique distinction of having been Chief Justice of India, Acting President of India upon the death of President Zakir Hussian and resignation of Vice President V.V. Giri, apart from being Vice President of India. ↑

20. K.S. Hegde was a member of the Rajya Sabha when appointed to the High Court. ↑

21. M.C. Setalvad, My Life – Law and Other Things, Universal Law Publishing Co. Ltd., 2008 Reprint, Page 261. ↑

22. M.C. Chagla, Roses in December, Bharatiya Vidya Bhavan, 2016, Page 250. Chagla would also cite the precedent of Lord Reading, the incumbent Chief Justice of England, who was sent as Ambassador to the US in 1914 by the Prime Minister. ↑

23. As quoted in M.C. Chagla, Roses in December, Bharatiya Vidya Bhavan, 2016, Page 249. Chagla's independence was on full display when he indicted Nehru's Finance Minister and close friend T.T. Krishnamachari in the Mundhra Scandal (much to Nehru's displeasure) which he was inquiring as a sitting Judge, prior to the Ambassadorship. ↑

24. Former Judge of the Bombay High Court. ↑

25. Former Judge of the Andhra Pradesh High Court. ↑

26. Former Judge of the Jammu and Kashmir High Court. ↑

27. Former Judge of the Allahabad High Court and the Bombay High Court. ↑

28. See George H. Gadbois, Judges of the Supreme Court of India: 1950-1989, Oxford University Press, New Delhi, Page 277-279. ↑

29. Justice Fatima Beevi was the first woman to be appointed as a Judge of the Supreme Court. ↑

30. See Federalist Paper No. 78 on The Judiciary Department. ↑

31. I.C. Golak Nath v. State of Punjab, (1967) 2 SCR 762 ↑

32. The King v. Sussex, [1924] 1 K.B. 256 at Page 259. ↑

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