Navigating the ethical divide: Judges, politics and public trust in the Indian judicial system

The proximity of politics and the judiciary creates an unnecessary apprehension of osmosis. How can India's judicial system allay this fear?

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THE judicial system of the country has been facing its biggest credibility crisis over the past ten years. Several instances that cannot be overlooked have battered public trust in the nation's judicial system.

Both Supreme Court and high court judges have been involved in controversies that have raised doubts about their trustworthiness to uphold fairness, impartiality and the rule of law.

Take a look at this situation: A sitting high court judge publicly announces his resignation and says he will enter politics, thereby blatantly renouncing his allegiance to the Constitution. 

A former judge of the Supreme Court joins the Upper House of the Parliament after giving judgments widely regarded as favourable to the ruling party at the Union level.

High court judges decline to release opposition party politicians on bail even though the matter is prima facie politically motivated. Many judges of high courts and the Supreme Court brazenly encourage the culture of 'sealed envelopes' in the trial proceedings, side-lining the principles of free and fair trial.

Judges deliver decisions that suit the ruling party and after retirement join government offices, i.e., as Lokpal, governors and chairpersons of Central bodies.

The above-stated incidents of judicial impropriety have not only affected the integrity of the judiciary but have also put at risk the trust people repose in the judiciary as the custodian of the Constitution.

Unfortunately, these incidents raise questions about judicial impartiality and create suspicions about the existence of a quid pro quo system.

The political class is found offering high-paying post-retirement offices and other lucrative positions to judges, indicating a low level of ethical standards and integrity.

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Ideally, judges should remain detached from all political activities and avoid post-retirement benefits. However, after retirement, they can enrich academics, social service and public information by sharing their thoughts on various issues of public concern.

A judge has a crucial responsibility to preserve constitutional values, civil liberties and the rule of law. This responsibility continues on the Bench and off it.

This analysis aims to highlight instances that have undermined people's trust in the judiciary and recommend measures to minimise the risks of political influences on an impartial judiciary.

The analysis also acknowledges that judges may have political ideologies, beliefs and principles, but they should not express them publicly. During their tenure in the Supreme Court and high courts, judges must disassociate from political entities.

The shadow of quid pro quo

In recent years, one of the most significant concerns that have affected the judiciary is the growing perception of judicial corruption and quid pro quo among the public.

The most recent case involves a sitting judge of the Calcutta High Court, Abhijit Gangopadhyay, who openly stated that he would join politics after the announcement of his resignation.

Now the Bharatiya Janata Party (BJP), which is the main opposition party in West Bengal, has given a ticket to Gangopadhyay from the Tamluk (East Medinipur) Lok Sabha constituency of West Bengal.

This development has once again stirred the debate on whether judges should have some cool-off period after their superannuation or resignation.

In the instant case, Gangopadhyay has made a shocking revelation without any remorse that he was in touch with the leading political party of the country and the BJP too was in touch with him during his judgeship at the Calcutta High Court.

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Gangopadhyay was once hailed as the 'people's judge', but the announcement that he was in touch with the BJP while being a sitting judge has raised doubts about his past Orders, which were often critical of the All India Trinamool Congress (AITMC) government in West Bengal.

Quid pro quo in the last ten years

Instances of judicial and political corruption, as well as pressure on judges to deliver favourable judgments or engage in quid pro quo, have not been limited to the Abhijit Gangopadhyay case.

In the last decade, several incidents have shaken people's trust in the judiciary. In 2018, four Supreme Court judges expressed concern that this was the darkest period for the Indian judicial system and that democracy in India was at risk.

They cited unwarranted government interference in high-profile cases and the transfer of certain cases to preferred Benches by the then Chief Justice of India (CJI) Dipak Misra as reasons for their concern.

In a press conference, the four senior-most judges after the CJI stated that they felt "things are not in order" with what they described as "the administration of the Supreme Court".

They suggested that there was an attempt to manipulate Benches and that senior judges were being kept away by the CJI from some high-profile cases.

They believed that the independence of the judiciary was in danger, and emphasised that an independent judiciary is essential for a well-functioning democracy.

After the highly controversial tenure of CJI Dipak Misra, which even included an unsuccessful attempt to impeach him (the first-ever impeachment attempt against a sitting CJI), CJI Ranjan Gogoi had the task of restoring public confidence in the administration of justice.

The first three months of CJI Gogoi's tenure were eventful due to cases such as the Rafale and the Central Bureau of Investigation, which ensured that the Supreme Court remained in the headlines.

However, a concerning development was that both these cases involved information being handed to the court in 'sealed covers', which has unfortunately become routine practice.

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The case of former CJI Arun Kumar Misra is also not surprising as his tenure as a Supreme Court judge and CJI is not beyond any criticism. After a splendid service, Misra was given post-retirement benefits as National Human Rights Commission chief.

Take another example, Justice S. Abdul Nazeer was appointed as the governor of Andhra Pradesh within a month of retiring from the Supreme Court. It is believed that he was selected due to his 'service' on the Constitution Bench that decided the Babri Masjid–Ram Janmabhoomi dispute.

This appointment is not an isolated incident, it is a matter of fact that since 2014, this has been the third time that a former Supreme Court judge has been appointed to a high-profile political post shortly after retiring.

Justice P. Sathasivam became the governor of Kerala and Justice Ranjan P. Gogoi was selected as a member of the Rajya Sabha. Such appointments are seen by many as a way for the government to signal to the judiciary that favourable decisions will be rewarded.

This practice can be seen as a way to corrupt judges and promote a culture of sycophancy, which is becoming increasingly evident among some judges in the Supreme Court.

The phenomenon of judges transitioning into politics after retirement has raised serious concerns about conflicts of interest and impartiality. It is a kind of quid pro quo corruption and needs to be addressed on a priority basis.

When former judges enter the political arena, there is a legitimate concern that their previous judgments may have been influenced by their political aspirations or affiliations.

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This perceived lack of independence undermines the foundational principles of the judiciary and reinforces the notion that justice can be swayed by partisan interests.

Issue of ethics and propriety

It is not forbidden for judges to enter politics, and in the past, many judges have done so, utilizsing their legal expertise and experience to serve the nation.

Justice Gangopadhyay is not the first judge to resign and enter politics. Former CJI, K. Subba Rao also resigned three months before his retirement.

CJI Rao was a strong advocate for human rights and was a part of the majority decision that established that Parliament does not have the authority to strip away fundamental rights.

Following his resignation, CJI Rao was nominated by the opposition as their candidate for the Presidential elections. However, due to the indirect voting system, he did not win as the ruling party managed to push through their candidate.

Justice K.S. Hegde is a more recent example. He was originally elected to the Rajya Sabha, then returned to practice law before being appointed as a Supreme Court judge. After a four-year hiatus, he ran for the Lok Sabha and eventually became the speaker of the Lower House of the Parliament during 1977–80.

The central issue in the ongoing debate is not whether a judge should engage in politics but rather the timing and circumstances surrounding his resignation, which suggest that his position was compromised during his tenure.

Gangopadhyay has issued many rulings that went against the ruling government in West Bengal, ostensibly he was acting as a puppet for the BJP during his time in the Calcutta High Court as his actions spoke louder than his words.

Final remarks

Talking about the importance of honest judges, former US Supreme Court Justice Antonin Scalia stressed that "if you want to be a good and faithful judge, you must accept the fact that you may not always like the conclusions you reach.

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"If you agree with every decision you make, you're probably doing something wrong."

A judge's role is not limited to presiding over court proceedings, but also to ensure that the constitutional philosophy of civil liberties, rule of law, equality and justice are fully protected.

In the case of Abhijit Gangopadhyay, the judge failed to control his political ambitions and used his judicial position as a stepping stone for his career in politics.

A judge, like any other human being, can be influenced by their passions, prejudices, likes and dislikes. However, despite their personal beliefs and ideology, a judge must uphold the rule of law and adhere to constitutional propriety.

To be a successful judge, they must learn to control their emotions through education, training, continued practice and the cultivation of humility and dedication to duty.

The integrity of the judiciary can only be saved by the inner strength of the judges themselves. When a judge pronounces a judgment, it is closely observed, scrutinised and assessed by civil society, lawyers, the press and academics.

Therefore, judges must conduct themselves dutifully and be held accountable to the people if they are found to have acted wrongly.

The judiciary has been struggling with several challenges such as transparency and accountability. The lack of clarity regarding judicial appointments, promotions, and disciplinary proceedings has led to concerns about favouritism and cronyism within the judiciary.

In the absence of effective mechanisms to ensure accountability, the judiciary runs the risk of alienating the public even further and reinforcing the perception of elitism and privilege.

To regain public trust, the judiciary must implement strict ethical guidelines that prohibit judges from accepting post-retirement government offices. A five-year cool-off period can improve transparency. Robust mechanisms for accountability and oversight must be established.