Justice Abhijit Gangopadhyay recently resigned as a judge of the Calcutta High Court and joined the Bharatiya Janata Party (BJP). He said that he was approached by the BJP, and he also approached the BJP, during his tenure as judge. He declared that henceforth, he will be a “party soldier”.
While he was judge, Mr. Gangopadhyay was often in the news for the wrong reasons. He allegedly gave an interview to a TV channel criticising the West Bengal government and speaking about the school job-for-bribe case. He created controversy by defying an order of a division bench. Sometimes he had run-ins with lawyers and even fellow judges. While dealing with one of the cases pertaining to Mr. Gangopadhyay’s conduct, a bench of Chief Justice of India D.Y. Chandrachud and Justice P.S. Narasimha rightly said that judges have no business giving TV interviews on pending matters. The Chief Minister criticised Mr. Gangopadhyay after his resignation saying his judgments will always remain questionable.
Former Union Minister Arun Jaitley had once advocated a cooling off period for judges saying “pre-retirement judgments are influenced by a desire for a post-retirement job”. When confronted with this suggestion, Mr. Gangopadhyay retorted that there is no rule to this effect. He added that he “never gave any political judgment which was politically biased”.
No legal bar
A member of the Constituent Assembly, K.T. Shah, had suggested that judges of constitutional courts should be legally barred from occupying executive posts. But the Constituent Assembly did not find favour with this. Implementing external rules to control the judicial behaviour of judges would be antithetical to the idea of judicial independence. This is why India has not legislated over the judicial conduct of judges of constitutional courts.
Acceptance of judgeship is often an act of sacrifice for lawyers as it involves loss of freedom. Restraint becomes the norm, which also reduces the space for personal aspirations. Yet, a judge of the constitutional court gets powers and privileges which others do not enjoy. According to Article 217 read with Article 124(4) of the Constitution, the only way to remove a judge is the almost unworkable method of impeachment by Parliament. Article 215 declares the High Court to be a court of record with contempt power which the judges could invoke. The jurist Alan Dershowitz was right when he said that “judges are the weakest link in our system of justice, and they are also the most protected”.
Judicial conduct
Paragraph VIII of the Third Schedule of the Constitution demands a judge-designate to swear inter alia that he will perform his duties without fear or favour, affection or ill-will. The Bangalore Principles of Judicial Conduct (2002) gained international acceptance as indicated by the Judicial Integrity Group. The declaration enlists certain judicial values including independence, impartiality, integrity, propriety, equality, competence and diligence. It emphasises the need to eradicate bias or prejudice in the decision-making process. It asks judges to ensure that their conduct “both in and out of (the) court maintains and enhances the confidence of the public, the legal profession, and litigants in the impartiality of the judge and of the judiciary”. Clause 2.4 of the declaration is against the judge making comments “that might reasonably be expected to affect the outcome of (a case).” It says that the “judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially”. The Code also says, “A judge shall conduct himself or herself in a way that is consistent with the dignity of the judicial office”.
The U.S judge, Simon Rifkind, remarked that the courtroom, sooner or later, becomes the image of the judge and that it will rise or fall to the level of the presiding judge. The Supreme Court in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) said, “To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behaviour”. In All India Judges’ Association v. Union of India (1991), the court spoke of “society’s expectation from judicial officers”.
There have been similar instances in the past. In 1967, Chief Justice Koka Subba Rao resigned to contest the presidential elections, and in 1983, the Supreme Court judge Baharul Islam resigned to get elected as a member of the Rajya Sabha. But past aberrations do not justify present wrongs. They are no longer good precedents or practices given the globally accepted principles of the Bangalore Declaration, which were made later.
An opportunity
The present episode, therefore, gives an opportunity to the Chief Justice of India and the Supreme Court to investigate the matter more seriously and evolve methods to avert such judicial aberrations. It could lead to one of the most awaited steps towards reforming the judiciary. The top court must expressly prohibit judges of constitutional courts from taking the political plunge even after they resign. Such acts should be interpreted as a breach of the oath read in the light of Indian precedents and the accepted norms on judicial conduct. There is a need for a judge-made law on the topic since Parliament will hardly act on this issue.
Kaleeswaram Raj is a lawyer at the Supreme Court of India
