“I approached BJP and BJP also approached me”

A sitting Calcutta High Court judge said this on the very same day he tendered his resignation as a judge. Two days later, he joined the Bharatiya Janata Party (BJP). This is what you might well call an arranged, love marriage!

That begs serious questions:

• Should all the rulings made by this judge in the last year, targeting the government of West Bengal, be declared null and void immediately?
• What happens to the dictum: “Justice must not only be done, but must also be seen to be done”?
• How badly does doing preparatory politics from the Bench destroy the impartiality of an institution?

The judge in question could very well put up a (weak) defence, saying this is not the first time this has happened.

A Couple Of ‘Precedents’

In 1967, prior to his retirement, former Chief Justice of India Koka Subba Rao stepped down three months early to run as an Opposition candidate against Congress’s Zakir Hussain in the presidential polls. Similarly, in 1983, former Supreme Court judge Baharul Islam resigned six weeks before his retirement to contest the Lok Sabha polls as a Congress candidate from Assam’s Barpeta seat. More recently, Justice Abhay Thipsay, who gave the verdict against Amit Shah, joined the Congress soon after retirement.

Former Chief Justice Ranjan Gogoi now occupies a seat in the Rajya Sabha as a nominated MP. The ‘honourable gentleman’ presided over the Ayodhya and Rafale judgments. A former staff member of the Supreme Court levelled serious allegations against the ‘honourable gentleman’. Sinecure?

After retirement, Justice Abdul Nazeer (the only judge on the Ayodhya bench belonging to the Muslim community) was made governor of Andhra Pradesh. Justice Ashok Bhushan, also on the Ayodhya bench, became chair of the National Company Law Appellate Tribunal. Sinecures?

Chief Justice P. Sathasivam retired from the Supreme Court in 2013. He had presided over a Bench that gave significant relief to the then Home Minister of Gujarat, Amit Shah, in the custodial killing case of Tulsiram Prajapati. He was made Governor of Kerala. Sinecure? Or just a coincidence!

On Protecting Judicial Independence

Some members of the Constituent Assembly had strong points of view on the dangers of undermining judicial independence, and proposed measures to protect the same. During the debates, economist and advocate K.T. Shah, member from Bihar, suggested a provision to prevent former Supreme Court and High Court judges from being appointed to executive offices. Shah’s proposal highlighted the potential for abuse if post-retirement positions were not explicitly addressed in the Constitution. He emphasised that the growing availability of executive positions in independent India could exacerbate this issue, warranting a clear and decisive stance to maintain the separation of powers and uphold the integrity of the judiciary.

The actions of the Calcutta High Court judge delivering ‘politically one-sided’ judgments followed by his resignation and immediately donning the jersey of a political party undermines the very foundation of our democracy. This columnist has refrained from even mentioning the name of the retired judge, lest a selfish individual gets more publicity than he warrants.

“Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says ‘Be you ever so high, the law is above you’.” These words, spoken by the Supreme Court of India in SP Gupta v Union of India, epitomised the pinnacle of judicial integrity and independence.

In 1995, American academic Dennis Thompson coined the term ‘institutional corruption’ to explain how (parasitic) external influences had compromised the US Congress and made it systematically deviate from its proper purpose.

Closer home, in 2012, a gentleman, whose ideology I did not share, but who personified Parliament 360 degrees, said, “Pre-retirement judgments are influenced by post-retirement jobs”. Wondering what Arun Jaitley would have had to say about all this.

[This article was also published in NDTV | Thursday, March 7, 2024]