Time to prohibit judges from joining politics
Relevance: GS Paper II
Why in News?
Justice Abhijit Gangopadhyay of the Calcutta High Court resigned as a judge and joined a ruling political party. He stated that he would be a "party soldier".
Turbulent tenure of Mr. Gangopadhyay:
- Mr Gangopadhyay was often in the news, such as giving an interview to a TV channel criticising the West Bengal government and speaking about the school job-for-bribe case. He also created controversy by defying an order of a division bench.
- While dealing with one of the cases pertaining to Gangopadhyay’s conduct, a bench of the Chief Justice of India rightly said that judges have no business giving TV interviews on pending matters.
- After his resignation, the Chief Minister criticised Mr Gangopadhyay, saying that his judgments would always remain questionable.
- However, Mr Gangopadhyay stated that he never gave any political judgment that was politically biased.
Paradox of judicial office:
- Acceptance of judgeship is often an act of sacrifice for lawyers as it involves loss of freedom.
- Restraint becomes the norm, which also reduces the space for personal aspirations.
- Yet, a judge of the constitutional court gets powers and privileges that others do not enjoy.
- According to Article 217, read with Article 124(4) of the Constitution, the only way to remove a judge is the almost unworkable method of impeachment by Parliament.
- Article 215 declares the High Court to be a court of record with contempt power, which the judges could invoke.
- The jurist Alan Dershowitz was right when he said that “judges are the weakest link in our system of justice, and they are also the most protected”.
No legal bar
- Former Union Minister Arun Jaitley once advocated a cooling-off period for judges, saying that pre-retirement judgments are influenced by a desire for a post-retirement job.
- Mr. Gangopadhyay retorted that there is no rule to this effect when confronted with this suggestion.
- A member of the Constituent Assembly, K.T. Shah had suggested that judges of Constitutional courts should be legally barred from occupying executive posts.
- But the Constituent Assembly did not find favour with this.
- India has not legislated over the judicial conduct of judges of constitutional courts.
- Implementing external rules to control judges behaviour would be antithetical to the idea of judicial independence.
Past instances:
- Similar instances have occurred in the past. In 1967, Chief Justice Koka Subba Rao resigned to contest the presidential elections. In 1983, Supreme Court judge Baharul Islam resigned to be elected to the Rajya Sabha.
- But past aberrations do not justify present wrongs.
- They are no longer good precedents or practices, given the globally accepted principles of the Bangalore Declaration, which were made later.
Judicial Conduct
- Paragraph VIII of the Third Schedule of the Constitution demands that a judge-designate swear, inter alia, that he will perform his duties without fear or favour, affection or ill-will.
- The Bangalore Principles of Judicial Conduct (2002) gained international acceptance as indicated by the Judicial Integrity Group.
- The declaration enlists certain judicial values, including independence, impartiality, integrity, propriety, equality, competence and diligence.
- It emphasises the need to eradicate bias or prejudice in the decision-making process.
- It asks judges to ensure that their conduct “both in and out of (the) court maintains and enhances the confidence of the public, the legal profession, and litigants in the impartiality of the judge and of the judiciary”.
- Clause 2.4 of the declaration prohibits the judge from making comments “that might reasonably be expected to affect the outcome of (a case).”
- It says that the “judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially”.
- The code also says, “A judge shall conduct himself or herself in a way that is consistent with the dignity of the judicial office”.
- U.S. Judge Simon Rifkind remarked that the courtroom would eventually become the judge's image and rise or fall to the level of the presiding judge.
- The Supreme Court in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) said, “To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behaviour”.
- In All India Judges’ Association v. Union of India (1991), the court spoke of “society’s expectation from judicial officers”.
Way forward:
- The present episode presents an opportunity for the Chief Justice of India and the Supreme Court to investigate the matter more seriously and evolve methods to avert such judicial aberrations.
- A judge-made law on the topic is needed, as Parliament will hardly act on this issue.
- The top court must expressly prohibit judges of constitutional courts from taking the political plunge even after they resign, as such acts should be interpreted as a breach of the oath read in light of Indian precedents and accepted norms on judicial conduct.
Conclusion:
The resignation of Justice Abhijit Gangopadhyay from the Calcutta High Court and his subsequent entry into politics brings to light the complicated relationship between the judiciary and politics. It emphasises the significance of safeguarding the judiciary's independence and honesty. This situation also presents an opportunity to contemplate and implement reforms that can strengthen the judiciary and uphold the principles of justice and fairness in society.
Mains PYQ
Q. Do you think that Constitution of India does not accept principle of strict separation of powers rather it is based on the principle of 'checks and balance'? Explain. (UPSC 2019)
