Conduct of judges

Context: A Calcutta High Court judge resigned from his post and joined a political party recently.

• This has raised questions of propriety about independent constitutional authorities joining political parties after demitting office.

Constitutional provisions protecting independence of judges:

• Security of Tenure: Articles 124(5) and 218(5) protect judges of the Supreme Court and High Courts from arbitrary removal.
  • They can only be removed through an impeachment by Parliament.
  • This security allows judges to make rulings without fear of repercussions from the government.
• Salary and Allowances: Articles 125 and 217 ensure fixed salaries and allowances for judges, which cannot be reduced during their tenure.
• The Method of Appointment safeguards the judiciary against political interference in the selection of judges.
• Separate Judiciary from Executive: Article 50 mandates the separation of the judiciary from the executive in public services.
• Post retirement restrictions: A judge of a Supreme Court after ceasing to hold office cannot appear as a lawyer before any court or authority in India.
  • A judge of a High Court has similar restrictions except for appearance before the Supreme Court or other High Courts.

Restrictions on political posts:

• There are no restrictions, expressly mentioned in the constitution when it comes
  • To joining political parties,
  • Contesting elections or
  • Being nominated to certain posts (Governor,Rajya Sabha member).

Previous instances of judges joining politics or taking up political posts:

• Supreme Court judges in 1967 and 1983, resigned from their posts to contest the presidential and parliamentary elections.
• A Supreme Court judge joined a political party in Tamil Nadu and contested elections five years after his retirement in 1999.
• Ranjan Gogoi, a retired Chief Justice of India was nominated to the Rajya Sabha in 2020 within four months of his retirement.
• Abdul Nazeer, a former Supreme court judge was appointed as the governor of Andhra Pradesh barely after one month of his retirement.

Concerns:

1. Perception of Bias: The mere act of joining a political party can create a perception of bias and undermine public trust in the judiciary and the fairness of legal decisions.
2. Undermining Judicial Integrity: Joining a political party can be seen as undermining this integrity and eroding public confidence in its fairness.
3. Loss of Credibility: The decision to join a political party could lead to a loss of credibility for the judge, as it may be perceived as prioritizing personal or political interests over the principles of judicial independence and impartiality.
4. Politicization of the Judiciary: Appointing former judges to political positions could undermine the public’s confidence in the judiciary’s impartiality.

Recommendations:

1. Prohibition on Post-Retirement Employment: Enact laws or regulations prohibiting judges from accepting certain types of employment or benefits after retirement, particularly those that could undermine judicial independence.
2. Cooling off period:Prescribing a cooling-off period of at least two years for joining political parties or being nominated to political posts by the government will instill confidence in the public at large and negate any allegation of quid pro quo.
3. Transparent Disclosure Requirements: Require judges to disclose any potential conflicts of interest, financial interests, or post-retirement plans.

Ultimately, the decision to enter politics after retirement is a deeply personal one for judges, but it is essential to balance individual freedoms with the broader interests of justice, fairness, and the rule of law.

Mains practice question:

Discuss the ethical and institutional implications of former judges joining politics. Examine the challenges to judicial independence, public perception of the judiciary, and potential measures to mitigate conflicts of interest.”