THE CONTEXT: Recently, Justice Abhijit Gangopadhyay, judge of Calcutta High Court resigned from his post to join a political party ahead of the Lok Sabha polls. The moment marked a low for the judiciary, and for the relationship between the government and the Court in West Bengal and is a backward step for the judicial institution.
MORE ON THE NEWS:
- Gangopadhyay is not the first judge of a constitutional court to resign and join politics.
- In 1967, former Chief Justice of India Koka Subba Rao resigned three months before he was to retire to contest the presidential election as the Opposition candidate.
- Supreme Court Justice Baharul Islam resigned six weeks before retirement in 1983 to contest the Lok Sabha polls. Post retirement, judges have become governors and Rajya Sabha
- Gangopadhyay’s case, however, stands out for at least two reasons:
1. His record in the court has been full of controversy.
2. These controversies showcased an unseemly spectacle of a sitting judge at loggerheads with an elected government, in a manner that invited questions of partisanship.
ISSUES:
- Question on impartiality of judiciary: The judge’s decision to join politics and the manner and context in which it was taken raises questions of judicial propriety, and impartiality.
- Independence of judiciary: The prospect of post-retirement employment can damage judicial independence. This can weaken the integrity and bring paritiality in decision making.
- Public confidence: These actions leads to change the public perception that the independence of the judiciary is compromised. It reduces public faith in judicial independence. In the recent ‘master of roster case,’ the Supreme Court reiterated that public confidence was the greatest asset of the judiciary
- Undermining Independence of Judiciary: The post-retirement appointment of judges may threaten or undermine judicial independence. It is often feared that a judge who is nearing retirement could decide cases in a manner that pleases the government in order to get a favourable post-retirement position.
- Against the separation of powers: Such acceptance of joining politics leads to the creation of tensions and mistrust between the executive and judiciary. This affects separation of power
- Denial of Law Commission Recommendation: In its 14th report in 1958, the Law Commission strongly recommended banning post-retirement government employment for Supreme Court judges because the government was a large litigant in the courts. The Commission’s recommendations were never implemented.
- Conflict of interest: It creates a conflict of interest. The immediate appointments show that the Government made decisions regarding judges’ post-retirement assignments even before retirement. Immediate post-retirement appointments of the judges create doubts about their judgments, irrespective of their merits.
THE WAY FORWARD:
- Clear demarcation: The Indian judiciary must distinguish between political favours and other post-retirement employment opportunities. There needs to be a demarcation between roles where the presence of a judicial authority is clearly valuable.
- Cooling off period: Officials who retire from sensitive positions are barred from accepting any other appointment for a period of time, normally two years. These cooling-off periods helps in tackling the nexus between previous incumbency and new appointment by the interposition of a sufficient time gap.
- Independent Regulation: The judiciary needs a mechanism to regulate post-retirement government appointments and role in politics. A special law may also be passed by Parliament prohibiting retired judges from taking up an appointment for two years.
- Role of judicial community: The judicial community should take a concerted decision of not taking up any appointments upon retirement stemming from political patronage.
THE CONCLUSION:
Immediate acceptance of post-retirement assignments certainly creates a dent on public confidence in judicial independence. Judiciary is considered to be an important pillar of democracy on which the duty of upholding the ideals of fairness lies. It is not only expected to maintain the rule of law but also ensuring that people’s trust in the institution is necessary.
UPSC PREVIOUS YEAR QUESTIONS
Q.1 The functional overlap between the organs of government undermines the principle of separation of power. Comment. (2020)
Q.2 ‘‘Constitutionally guaranteed judicial independence is a prerequisite of democracy.’’ Comment. (2023)
MAINS PRACTICE QUESTION
Q.1 The judges accepting employment under the government after retirement undermines the constitutional values of impartiality and independence of the judiciary. Comment.
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