JUDGES JOINING POLITICS
WHY IN NEWS?
- Recently, High Court Justice Abhijit Gangopadhyay resigned as a judge of the Calcutta High Court and joined the Bharatiya Janata Party (BJP).
CONSTITUTIONAL DEBATES ON THIS MATTER:
- T.SHAH, a member of the Constituent Assembly had suggested that judges of constitutional courts should be legally barred from occupying executive posts. But the Constituent Assembly did not supported this ides.
- It was justified that implementing external rules to control the judicial behaviour of judges would be antithetical to the idea of judicial independence.
CONSTITUTIONAL SAFEGUARDS FOR THE INSTITUTIONS:
- An independent judiciary keeps a check on other two branches of the State.
- Apart from judiciary, there are also other independent bodies like the Election Commission, Public Service Commission, Comptroller and Auditor General (CAG) who are required to perform their constitutional duties without any interference from the government.
- 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 also has similar restrictions except for appearance before the Supreme Court or other High Courts.
- Such restrictions are very important as they are laid down to avoid favoritism towards the government in power with an intent of securing any post-retirement benefit.
CASES OF JUDGES JOINING POLITICS IN THE PAST:
- There are no constitutional restrictions to judges when it comes to joining political parties, contesting elections or being nominated to certain posts.
- There have been two Supreme Court judges in 1967 and 1983, who resigned from their posts to contest the presidential and parliamentary elections from Assam, respectively.
- Another Supreme Court judge joined a political party in Tamil Nadu and contested elections five years after his retirement in 1999.
- A former Chief Election Commissioner became a Rajya Sabha member and Minister in 2004 just three years after his retirement.
- A retired Chief Justice of India was nominated to the Rajya Sabha in 2020 within four months of his retirement.
FEW RECOMMENDATIONS FORWARDING SOLUTIONS:
- The Election Commission had in 2012 recommended to the Union government to provide for a cooling-of period for top bureaucrats after their retirement before they could join political parties and contest elections.
- However, the Government had rejected this recommendation based on the opinion of the Attorney General that this may not be in line with constitutional provisions and democratic values.
- The Supreme Court had dismissed a writ petition in May 2022 that sought a direction from the top court to the legislature to frame a law imposing a cooling-of period for retired bureaucrats before joining politics.
- The court observed that it is for the legislature to determine whether a cooling-of period is required for bureaucrats before they join politics after retirement.
WHAT NEEDS TO BE DONE?
- As there are rules at present which restrict a senior bureaucrat from joining a private job for at least one year after he or she retires from government service.
- According to Attorney General such restriction for commercial employment is based on intelligible differentia to avoid conflicts of interest.
- But such restrictions against officials contesting polls may not be in harmony with democratic principles of the Constitution.
- Extending this principle for judges and bureaucrats even after they demit office will have a salutary effect.
- This objective can be achieved by prescribing a cooling-of period of few years for joining political parties or being nominated to political posts by the government.
- Such arrangement will instill confidence in the public at large and negate any allegation of quid pro quo.
WAY FORWARD:
- As Former Union Minister Arun Jaitley had once opined a cooling off period for judges by saying “pre-retirement judgments are influenced by a desire for a post-retirement job”.
