Are we getting needlessly agitated about judges having political loyalties?

Do you think that the judiciary in India has become too politicised?

That judges tailor their judgments, especially the remarks, to please politicians? That the hope of fair and free justice in our democracy is now in danger of being over-run by political influences and interests?

 

My answer to all these questions is: no. Our judges are generally fine, upright individuals who operate without fear or favour. But yes, every once in a while, we come across an example that makes us pause and think.

 

   I refer, of course, to the ongoing saga of the Calcutta High Court judge, Justice Abhijit Gangopadhyay. You may have heard of him before, even if you do not live in Calcutta and have no great interest in legal matters because he has consistently hit the headlines over the last few years. He is known for his criticism of West Bengal’s Trinamool Congress government and for ordering probes into TMC functionaries and into the government’s activities.

 

   You could take the line that this is an example of fearless judicial activism, of a judge who took on the ruling party in his state. Unfortunately, his lordship possibly crossed some invisible but clearly defined line between activism and impropriety.

 

   Last April, when he was hearing a case related to an alleged scam in appointment of school teachers, Justice Gangopadhyay took the unprecedented step of giving a television interview on the subject. The interview left no one in any doubt about what he thought of the case. (Hint: it was not a defence of the TMC!)

 

   This so angered the Supreme Court that it declared that “sitting judges have no business giving interviews to TV channels”. This did not unduly bother Justice Gangopadhyay, who continued to flaunt his anti-TMC leanings in a manner that may have crossed the limits that judges normally set for themselves. In the process, he clashed with the Calcutta Bar Council and became a controversial figure at the national level.

 

   The TMC responded by launching scathing attacks on the judge, going against previous conventions regarding courts and the government. The party’s view was that it was entitled to call a spade a spade because Justice Gangopadhyay was functioning not as a fair-minded judge but as a person with clear political loyalties.

 

   Of some things there can be no doubt. The judge broke with convention in his tirades against the state government and against TMC leaders. That he took his views out of the courtroom and straight to the TV cameras also suggests that he was not too worried about propriety—even the Chief Justice of India thought he had behaved badly.

 

   Equally, the TMC had no business attacking a sitting judge of the high court so viciously. The balance between the judiciary and government can only be maintained if both sides behave with restraint. Even the TMC’s defence, often expressed in briefings that “he is not behaving like a judge but like an agent of the BJP”, did not hold up without hard evidence of his lordship’s pro-BJP bias.

 

   Then, on Tuesday, matters became clearer. Justice Gangopadhyay resigned from the Calcutta High Court. He was joining the BJP, it was revealed. At a press conference, he praised the Prime Minister. “Narendra Modi is a good man. He is very hardworking. He is trying to do something for the country,” he declared. “I am joining the BJP because it is the only national party.”

 

   His term only ends in August. So why was he quitting the bench early? Is it for a ticket to contest the Lok Sabha election in April-May? The judge’s response was high-minded. “That is for the BJP to decide,” he said solemnly.

 

"Should we allow political parties to win judges over to their side by promising them political posts when they retire?"

   Until that point, every fair-minded person had been inclined to believe that the TMC’s claims of bias were uncalled for and dangerous. But the judge’s leap into politics, his apparent willingness to contest on a BJP ticket, and his rhetoric about PM Modi suggests that the matter goes beyond the Calcutta High Court. It requires a more wide-ranging debate.

 

   Civil servants are obliged to wait for a cooling-off period before they accept jobs in the private sector. This is to prevent bureaucrats from favouring a businessman and then quickly rushing off to become his employees once they retire.

 

   There is, as far as I know, no similar rule for bureaucrats who want to join politics. And there certainly is no such rule for judges. And yet, what is the greater danger: that civil servants will join the private sector? Or that they will forget their responsibilities to the nation and become slaves of their political masters only so that they are assured of post-retirement political careers?

 

   I think the time is right for a debate on that one.

 

   In the case of judges, the issue is even more pressing. We live in an age when the whole country looks to the judiciary to keep the legislative and the executive branches in check. Should we allow political parties to win judges over to their side by promising them political posts when they retire?

 

   Already, when Chief Justice Ranjan Gogoi accepted a Rajya Sabha nomination on his retirement, there were complaints from his critics that he had been rewarded for his role in the Ayodhya judgment. (I am sure that this is a foul slander.)

 

   But if judges keep joining political parties which they are perceived (rightly or wrongly) to have supported while on the bench, what will this do to the credibility of his judiciary? Our judicial system is inherited from the British. And what Justice Gangopadhyay has done would be extremely unusual in the British context. It might even be regarded as completely beyond the pale.

 

   On the other hand, in the US, judges often have declared political leanings. They can be political appointees. In the case of the current US Supreme Court, there is a clear distinction (in terms of the tone and content of judgments) between those justices appointed by Democratic Presidents and those appointed by the likes of Donald Trump, a Republican.

 

   So, it is legitimate to ask: are we getting needlessly agitated about judges having political loyalties? After all, they have such loyalties in America and the US’ judicial system certainly works more efficiently than ours.

 

   I put the question to Sanjay Hegde, the eminent lawyer who has been critical of Justice Gangopadhyay’s decision to come out in a blaze of saffron.

 

   Hegde is clear. There has to be a cooling-off period. “The asset of impartiality of judges is lost otherwise. Can you imagine US Chief Justice John Roberts resigning and taking over the Republican nomination from Trump even if Trump requested him to do so?”

 

   As for the US precedent, Sanjay said that yes, Supreme Court judges in America are political appointees but they have to be approved by the Senate with full disclosure about their political leanings. In India, we have no such system.

 

   There have been politicians in the US who went on to join the Supreme Court (with Senate approval) such as Earl Warren, a former Governor of California. Even in India, Krishna Iyer went from being a minister in the state government to becoming a judge. But the opposite route is almost unheard of: nowhere do judges, whose court rulings support the government in power, get rewarded by politicians who welcome them among their ranks.

 

   Hegde thinks that the open declarations of party loyalties by judges is dangerous. “Politicising the judiciary with convenient judges is one thing,” he says. “Judges becoming political playthings is much worse.”

 

   It’s hard to disagree with him. The independence of the Indian judiciary is already under threat with attacks on the collegium system through which judges are appointed. If political parties politicise judges and co-opt them into their system, then judicial independence, perhaps the last bastion of Indian democracy, will most certainly fall.