The Constitutional Void On Judges Obtaining Political Affiliations - An Absymal Tradition
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
THE CONSTITUTIONAL VOID ON JUDGES OBTAINING
POLITICAL AFFILIATIONS: AN ABSYMAL TRADITION
Siddhant Bajpayee, LL.M., RMLNLU1
ABSTRACT
In India, Judicial Integrity is, mainly considered to be restricted to the issues of legal ethics and legal malpractices. This often leads to the oblivion about understanding the concepts of ‘judicial accountability’ and ‘judicial independence’, the two facets of the same coin. It is unfortunate that, till the date there is a brevity of identified justifiable standard of judicial conduct which a member of judiciary must adhere. It is a paradox of the system that even after more than seventy years have passed there has never been any permanent or temporary solution with apposite enforceability that fosters a sense of accountability in the aberrant judges for their deviant acts and malpractices with serious ramifications.
A trend which is although not obsolete, but had not addressed for a substantial period of time in judicial history, has again revived in the judicial realm by few recent instances, i. e. , “Judges joining Politics”. This concept is pernicious and blundering, in its very essence, as it not only castigates the basic principle of any democratic nation, i. e. , “Separation of Power”, but also deteriorates the faith and confidence of general public in the Judicial System. This study aims to, firstly understand the concepts that lie behind the situation in hand; secondly, it attempts to find out the factors that are exacerbating the same; and thirdly, it tries to figure out the ways of its attenuation.
1 Dr. Ram Manohar Lohiya National Law University (RMLNLU), Lucknow, Uttar Pradesh.
I.
INTRODUCTION
In modern times, the doctrine of “Separation of Power” as articulated by the thinkers like, Montesquieu, forms the bedrock of the constitutional democracies bifurcating the functions of a government into three parts, namely, the legislature, executive, and judiciary and assigning distinct roles to all of them. This division not only prevents the concentration of the power, but also ensures that each organ operates independently while maintaining a system of checks and balance. The judiciary stands as the sentinel of justice in a democratic society ensuring that governance remains within the bounds of law and that the rights of the citizens are protected. The judiciary has been considered to be “an arm of the social revolution upholding equality”.
With the hyperbolic proliferation of the aspirations of the people living in the society and in order to show its alacrity and propensity to address them, the judiciary has evolved the concepts like ‘Judicial Activism’, which eventually resulted to ‘Judicial Overreach’ on one side and ‘Transgression’ into the other branches of the government on the other. This transgression has both the positive aspect of circumscribing them within its respective jurisdiction and also the negative aspect of self-indulging into others’ arena. The foundational principle of judicial independence is governed and defined by the concept of judicial integrity. Judicial integrity entails rendering decisions that reflect the court's dedication to legality and justice, thereby avoiding any semblance of endorsement or complicity in the unlawful actions of other governmental branches.
The maintenance of impeccable ethical standards by legal professionals, especially judges, is crucial for the legitimacy of the judicial system, which fundamentally relies on a trust-based relationship with the community it serves. The Indian constitution drawing inspiration from the doctrine of separation of power underscores the independence of judiciary as a non-negotiable principle, yet it remains curiously silent on the tradition of judges obtaining or maintaining political affiliations, a silence that has significant implications for judicial impartiality and public trust. In a government where the legislature enacts law and executive enforces them and the judiciary interprets and reviews them, even the perception of political bias in the judicial conduct can undermine the delicate equilibrium envisioned by such doctrine.
By acknowledging the very fact of an impartial and independent judiciary, one assumes the inevitable and incontrovertible presence of righteousness in the minds of the judges while delivering the judgments, not likely to be denigrated and corrupted by the malice of political allurements and positions, which eventually not only deteriorates the trust of the concerned aggrieved parties, but it results in serious ramifications and reverberation of perpetuating the perception of non-civilized and autocratic nation. Dealing with the issue of Judicial integrity, the Supreme Court of India in the landmark case of “K. Veeraswami vs. Union of India and Ors.
”2 dictated that, Corruption within Judiciary, “will create a serious inroad on the dignity, respect and credibility and integrity of the high office which a superior judge occupies resulting in the erosion of the dignity and respect for the high office of the Judges in the estimation of the public. ” Further they opined that, “A single dishonest judge not only dishonors himself and disgraces his office but jeopardizes the integrity of the entire judicial system. ” This study examines the implications of this constitutional silence, considering how it affects the perception and reality of judicial impartiality. It delves into the potential conflicts that arise when judges maintain political affiliations, exploring the fine line between a judge's right to personal political beliefs and the need for public confidence in the judiciary's neutrality. II.
JUDICIAL INTEGRITY
A judiciary inculcating irreprehensible integrity is the quintessential desideratum for upholding the principles of the rule of law. It provides a sense of security to the public against encroachment on its freedoms and rights under the law. Judicial integrity refers to the righteousness along with the ethical standards, impartiality and independence that are expected from the judges and judiciary in order to uphold and ensure justice and equality. and to administer the same fairly and without bias. Judicial integrity encompasses various aspects within itself which are discussed below: -
2 K. Veeraswami vs. Union of India and Ors, 1991 SCR (3) 189.
1. JUDICIAL INDEPENDENCE
The independence of the judiciary encompasses more than merely establishing a selfgoverning institution that is free from the control and influence of the executive and legislative branches. The fundamental objective of judicial independence is to ensure that judges are able to adjudicate disputes based on legal principles, free from external influences. 3 Explaining the expression, “judicial independence”, Shimon Shetreet4 observed that the concept of judicial independence encompasses both the autonomy of the judiciary as a collective entity within the government and the independence of individual judges in executing their judicial responsibilities. The collective independence of the judiciary is essential for safeguarding the independence of its members; conversely, the independence of individual judges is crucial for the effective functioning of the judiciary as a whole.
Consequently, while these two aspects may be conceptually distinct, they must be pursued concurrently. A system that neglects either dimension is unlikely to make significant strides toward achieving true judicial independence. To Shetreet5, the independence of individual judges encompasses both substantive and personal dimensions. Substantive independence refers to the judge's obligation to adhere solely to the law when making judicial decisions and fulfilling other official responsibilities, while personal independence pertains to the security of judicial tenure and the terms of office. Furthermore, the independence of judges extends to their autonomy from both judicial superiors and colleagues.
We can conclude judicial independence has a few essential prerequisites, which are- 3 See, ‘Siracusa Principles’, also known as ‘Draft Principles on the Independence of the Judiciary’, formulated at Siracusa, 1981, reprinted in CIJL Bulletin No. 25-26, at 59 (Apr. -Oct. 1990), which read: “Independence of the judiciary means (1) that every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without any improper influences, inducements, or pressures, direct or indirect, from any quarter or for any reason, and (2) that the judiciary is independent of the executive and legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.
” 4 Shimon Shetreet, ‘Judicial Independence: New Conceptual Dimensions and Contemporary Challenges’, in JUDICIAL INDEPENDENCE: THE CONTEMPORARY DEBATE 594 (Shimon Shetreet & Jules Deschenes eds. , 1985).
5 Id. at 599.
A. INSULARITY: -
Judicial independence is characterized by judicial insularity, which refers to the judiciary's commitment to its own domain and its reluctance to encroach upon the responsibilities of other branches of government. The United Nations Basic Principles on the Independence of the Judiciary stipulate that judges must adjudicate cases presented to them "without any restriction, undue influence, direct or indirect, from any party or for any reason whatsoever. " To ensure the separation of the judiciary from the executive branch and to safeguard it against political interference, numerous constitutions and legal frameworks assign the governance of the judiciary to judicial councils, which are comprised of judges and representatives from other governmental branches.
It is widely accepted that the duration of a judge's tenure correlates with a diminished risk of political interference in judicial proceedings. When judges are appointed until the age of retirement, the political executive has significantly fewer opportunities to manipulate judicial appointments for partisan advantage. Furthermore, incumbent judges are generally less motivated to cater to the interests of politicians compared to those who may be concerned about their future career prospects. B. EXCLUSIVE COMPETENCE: - A second essential requirement for judicial independence is the exclusive authority to adjudicate. The underlying principle is that judicial independence must remain unaffected by the limitations placed on judicial power.
Constraints on the capacity of judges to render judgments undermine both independence and the rule of law by diminishing the authority of the judicial system. Nevertheless, while the concept of 'Judicial Activism' is recognized, it is equally important to critically consider its counterpart, 'Judicial Overreach. ' C. COMPLIANCE: - Court rulings necessitate enforcement through both respect for the judiciary and legal compulsion. Noncompliance with judicial decisions can diminish public confidence in the principle of judicial independence. It is crucial to acknowledge that the integrity of justice is jeopardized when a fair and unbiased ruling is not executed, resulting in successful litigants being deprived of their rights. Furthermore, a state's failure to guarantee the enforcement of judicial decisions erodes the public's inclination to adhere to the law.
Consequently, a fundamental aspect of the rule of law is that "without the proper application of impartial regulations, the establishment of any legal norm is unattainable. ". 6
2. JUDICIAL ACCOUNTABILITY
Judicial accountability is a concomitant of the independence of the judiciary. The justification provided is a reasonable and coherent rationale for an individual in a position of authority, who has been granted power, regarding their previous actions, thereby affirming the rationality of their decisions and the extent to which they exercised sound judgment. The primary objective of the judicial accountability framework is to enhance the effectiveness of the justice administration system and to establish the necessary standards for the delivery of justice. This framework is a fundamental aspect of a limited constitutional system, serving as a prerequisite for public trust and as a foundational element of the legal system. The Supreme Court of United States of America opined in Bradley vs.
Fisher7 that “The provision of the law is not for the protection or benefit of malicious or corrupt judge, but for the benefit of the public, whose interest therein is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences. ” Moreover, in a more elaborative manner, Professor Mauro Cappelletti8 set out the plenitude of accountability mechanisms in what he calls “a typology” as follows-
1. Political Accountability at two levels, i.e., distinctively for the individual judge and
also for the judiciary as an institution. He also further bifurcated them into two 6 Marcelo Bergman, ‘The rule, the law, and the rule of law: Improving measurements and content validity’, 33(2), The Justice System Journal, pp. 174-193, (2012).
7 Bradley vs. Fisher, 80 U.S. (13 Wall.) 335.
8 Mauro Cappelletti, ‘Judicial Responsibility’, 31, AJCL. 1, (1983).
following subversionsa) Accountability in regard to the other branches of the government and b) Constitutional Accountability.
2. Societal or Public accountability, i.e. general accountability towards the public at
large. This accountability has to be maintained both by the individual judges, by their acts and conducts, in and outside the court-room, and by the whole judicial institution, preserving the ‘respect and confidence’ of people therein.
3. Legal (vicarious) liability of the state for the conducts of its judicial officers which can
be either be jointly or severally and it can either be exclusive or concurrent with the personal liability of the judges.
4. Legal (personal) liability of the judges which can be criminal (penal), civil
(compensatory) or disciplinary (administrative). Judicial Independence may cause judicial lethargy; Judges behind the wall of independence may become redundant and non-responsive to the efficacy in the administration of justice. Judicial Accountability, being a counterpart thereof, may add benefits to the State economy by ameliorating judicial transparency and impartiality. Prominent legal scholars, including former Hon'ble Chief Justice of India S. Venkataramaiah and former Supreme Court Justices D. A. Desai and O. Chinnappa Reddy, have articulated the perspective that if all segments of society are held accountable and responsible for their actions, there is no justification for exempting judges from such accountability. In a similar vein, former Hon'ble Chief Justice of India J. S.
Verma acknowledged the legitimacy of this argument during a particular instance when he stated, “These days we (Judges) are telling everyone what they should do but who is to tell us? We have task of enforcing the rule of law, but does not exempt and even exonerate us from following it”. Thus, the concept of judicial independence is fundamentally intertwined with judicial ethics, with accountability being a critical dimension of this relationship. Furthermore, there exists a continuum between accountability and independence, such that the consideration of one without the other is detrimental to the viability of both. Judicial independence cannot be regarded as an isolated construct; rather, it is within an accountable judiciary that public trust is fostered. III.
POLITICIZATION OF JUDICIARY
A study conducted in 2015, “The Politics of Selecting the Bench from the Bar: The Legal Profession and Partisan Incentives to Politicize the Judiciary,”9 investigates the ideological stances of judges across various levels of the legal system in the United States. It finds that as one ascends the judicial hierarchy, the divergence in political views becomes more pronounced. Consequently, the most conservative courts tend to be the least representative of the ideological spectrum of legal practitioners. While judges generally exhibit more conservative tendencies than state attorneys, they are nonetheless more aligned in their political ideologies with attorneys than with politicians, indicating a potential for increased politicization.
The trend of heightened politicization appears to be more pronounced at the federal level compared to the state level, suggesting a strategic maneuver by Conservative and Republican factions to direct the most viable candidates toward higher courts, where judicial decisions carry significant political weight. The United States Supreme Court has historically played a pivotal role in American society; however, this role is evolving, as the court's nine justices—who are unelected and serve lifetime appointments—are increasingly influential in the political landscape of the nation. Although the court is intended to be insulated from political fluctuations and the justices are meant to be free from political pressures in their decision-making, the current situation has intensified concerns regarding political inclusivity within the judiciary.
The objective of removing political influences from the judiciary has been a longstanding aspiration since the establishment of the Republic. Alexander Hamilton10 explicated in the Federalist Papers that “there is no liberty, if the power of judging be not separate from the 9 Adam Bonica and Maya Sen, “The Politics of Selecting the Bench from the Bar: The Legal Profession and Partisan Incentives to Politicize the Judiciary”, 60(4), The University of Chicago Press, pp. 559-595, (November 2017).
10 See, Hamilton, A. (1788). ‘The Federalist Papers
No. 78’. legislative and executive powers. If judges had to depend on the ‘Executive or Legislature’ to keep their jobs, judges would have ‘too great a disposition to consult popularity’ instead of consulting ‘the Constitution and the laws,’ and we could not expect the ‘inflexible and uniform adherence’ to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice. ” In Indian Judiciary, the recent calls for enhanced judicial accountability, prompted by specific incidents, have raised eyebrows of many legal jurists concerning the probable harm that they entail and their untoward reverberations. AREA OF CONCERN- Justice J. S. Verma, former Chief Justice of India in his lecture of 199511 pointed out the latent dangers to judicial independence and concluded that: “The existence of power must be accompanied by accountability...
Erosion of credibility in the public mind resulting from any internal danger is the greatest latent threat to the independence of the judiciary. Eternal vigilance to guard against any latent internal danger is necessary, lest we suffer from self-inflicted mortal wounds... The absence of any codified rules or norms to regulate judicial behavior at the higher levels has been on account of the view that those entrusted with the task of regulating the conduct and behavior of others do not need to be told of the requirement from them. Observance by us of the norms and guidelines indicated for the members of the judiciary by the ancient texts and the judicial verdicts is a sure way to prevent any threat from the lurking latent dangers from within. It would also satisfy the legitimate expectation of the people of our accountability which must accompany the investment of any public power”.
The necessity to regulate this domain through internal discipline in order to avert external interference led to the formulation of resolutions during the Chief Justices’ Conferences. However, a prevailing reluctance within the judiciary delayed progress on this issue until the Supreme Court unanimously adopted three resolutions on May 7, 1997. These resolutions included: ‘the Restatement of Values in Judicial Life’, ‘the Declaration of Assets by Judges of the Supreme Court and High Courts’, and the establishment of an 'In-house Procedure' for investigating allegations against the judges of the higher judiciary. Later on, these resolutions were reaffirmed and concreted 11 See, “Judicial Independence: Is It Threatened? ” by Justice J. S. Verma, former CJI, delivered at the First S. Govind Swaminadhan Memorial Lecture at the Madras High Court Bar in Chennai on 29 January 2010.
at the Chief Justices’ Conference in 1999. Furthermore, the Bangalore Principles of Judicial Conduct, 2002 also endorsed and postulated these judicial values and ethics. Collectively, these resolutions established a regulatory framework for the requisite legislation, ensuring that there would be no opportunity for executive interference in the legislative process. The following are some areas of concern that call for immediate intervention- A. POST-RETIREMENT MISDEMEANOUR The post-retirement behavior of senior judges, particularly those serving as such in the Supreme Court, warrants consideration in this context. One method through which even the most principled judges may be swayed is the allure of lucrative post-retirement benefits-assuring jobs offered by the executive for them.
The constitutional guarantee of security of tenure and favorable conditions of service imposes a corresponding obligation on these constitutional officials to adhere to a code of conduct following their retirement, which explicitly rejects such temptations. To the extent feasible, necessary constitutional prohibitions should be enacted to foster the development of healthy conventions. Given the prevailing environment of diminishing ethical standards, the implementation of these preventive measures is essential. B. IMPEACHMENT: THE GROUND REALITY Chief Justice Balakrishnan has openly acknowledged that the process of removal of judge was purposely made difficult and arduous by the constitution to keep maintain the independence of judges from external pressures.
Perhaps, it is due to this cumbersomeness of this process, the three prominent cases of presenting a motion for the impeachment of a judge, namely, for Justices Soumitra Sen, P. Dinakaran and Ramaswamy, have failed miserably. Notwithstanding, it guarantees the judges the freedom required to do their work, considering the other precarious side thereof, i. e. , the onerous method for judicial impeachment, it plainly provides them with an escape route or failsafe to take liberties according to their wishes or encouragement for corruption without the fear of getting removed from their posts even after being the subject to an investigation or an in-house reporting. The onerous process of impeachment of judges has been just the crust of the deeper problem of judicial accountability.
Thus, one can conclude that, “The only recourse against a judge committing judicial misconduct is impeachment, which has been found to be a totally impractical remedy”. C. SWORD OF CONTEMPT POWER The third pernicious reason for the low answerability of Indian judges is the power of the court to prosecute someone for their contempt. This power, which was originally intended to provide the court with power to enforce its decisions and punish any obstruction in justice provides the court with a heavy weapon at its disposal making them intolerant to be questioned the same public they are sworn to serve. The concept of judicial independence has been exploited by some judges to use as a shield and justify the repressing of any questions directed at them by someone.
Thus, Contempt of Court cannot and should not be invoked every time there is a legitimate critique directed towards the functioning of the judiciary. It is bogus and baseless to say that these actions seem to undermine the court’s honor and integrity if no action is taken against them. The courts eventually end up tarnishing their esteem themselves when they invoke the use the contempt power in such cases. And, therefore, there is an urgent need to reconcile both laws, the Freedom of Speech and Expression and the Contempt of Court Laws, somehow as soon as possible. The judiciary needs to earn its respect through the justice it delivers, not the fear it entices. D. INEFFECTIVENESS OF IN-HOUSE PROCEDURE On several occasions, it has been found and observed by the Hon’ble Supreme Court on its own that “In-house Procedure” is futile and results into no concrete conclusions.
Furthermore, there has been a lack of transparency that complicates the assessment of its effectiveness as a disciplinary tool. According to the established internal protocol, upon receiving a complaint against a High Court judge, the Chief Justice of India assesses the complaint's merit and seriousness. Should the Chief Justice determine that a more thorough investigation is warranted, both the complaint and the judge's response, along with the observations of the Chief Justice of the relevant High Court, are documented for subsequent action. If deemed necessary or urgent, the Chief Justice of India may constitute a three-member committee to investigate the issue, which must comprise two Chief Justices from different High Courts and one judge from a High Court.
Should the committee determine that the allegations have merit and that the misconduct is of a serious nature, it may necessitate the removal of the errant judge from their position. In instances where the conduct warrants such action, the judge in question will be encouraged to either resign or pursue voluntary retirement. However, if the judge refuses to resign, the Chief Justice of the relevant High Court will be requested to reassign the judge's judicial responsibilities. Additionally, both the President and the Prime Minister will be apprised of the circumstances, thereby facilitating the initiation of the impeachment process within Parliament. Talking about its significance, in the case of C. Ravichandran Iyer vs. Justice A. M. Bhattacharjee12, wherein Under Article 32, the petitioner sought for a permanent issuance of proper written order or direction coercing Justice A. M.
Bhattacharjee, Chief Justice of High Court of Bombay to resign as a judge, the Supreme Court held that, “The yawning gaps between proved misbehavior and misconduct incompatible with the senior level of office on the part of a non-cooperating judge/Chef Justice of the High Court might, however, be viewed as being disciplined by self-regulation through the domestic in-house procedure. This in-house method would cover the constitutional void and have salutary effects. Unfortunately, this approach was not employed in the current instance since such a practice was devoid of legal sanctions. ” The In-house procedure was further elucidated and explained in Additional District and
12 C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee, 1995 (5) SCC 457
Sessions Judge ‘X’ vs. Registrar General, High Court of Madhya Pradesh13. This procedure has not more than a claptrap of procedural scheme. The transparency and the integrity of the judiciary are the two key elements that must be upheld by its member in order to gain public confidence. Thus, the judiciary should have a better version of mechanism ensuring a more developed responsibility to make the decision-making process clearer and fair for all. Some recent instances of such aberration by the judges of the higher judiciary are worth mentioning, in order to back the above context. On 10th of December, 2024, a judge of the Allahabad High Court, Justice Shekhar Kumar Yadav was alleged to have made a controversial speech at an event organized by the Vishwa Hindu Parishad (VHP). The Supreme Court Collegium took the notice of the action and called him to appear before the collegium.
Justice Hrishikesh Roy, the former Judge of the Supreme Court, who was the member of the Collegium when the concerned Judge at default, was called up, later said in an interview that, although the concerned judge appeared before them and rendered an unconditional apology to them, he never published a public apology for the same, despite of ensuring the Collegium that he would do so. And, now that matter is bygone and buried under the ground and although, attempts were made to initiate a motion of impeachment against such Judge, all efforts went in vain. In similar terms, on 23rd March, 2025, an In-House Procedure against the Delhi High Court judge, Justice Yashwant Verma has been ordered by the Supreme Court Collegium over the recovery of huge amounts of unaccounted cash in his official residence.
Moreover, pending the inquiry, his transfer to Allahabad High Court was ordered as a preliminary action. On 4th May 2025, the committee of three high court judges over allegations of cash discovery at his official residence submitted its report indicting him, to former Chief Justice of India Sanjiv Khanna, who later, forwarded the same to the President. However, no concrete action against the impugned judge has yet been taken. 13 Additional District and Sessions Judge ‘X’ vs. Registrar General, High Court of Madhya Pradesh, AIR 2015 SC 645.
E. DOCTRINE OF RECUSAL
Impartiality constitutes a critical aspect of judicial independence, wherein judges are expected to render decisions solely based on legal principles and factual evidence, devoid of any bias or external influence. Doctrine of Recusal is one of the means to secure the judicial integrity. Recusal means, “to disqualify or remove oneself as a Judge over a particular proceeding because of one’s conflict of interest. ” While perusing the circumstances, a judge may have to evaluate not only on the basis of real likelihood of bias but also on the ground of reasonable suspicion of bias. This doctrine is based on one of the basic principles of “Natural Justice”, i. e. , ‘nemo judex in causa sua’, that is to say, “a person cannot be judge in his own cause”. Moreover, it is also backed by Articles 14 and 21 of the Constitution of India.
When an individual judge has any kind of personal interest in a specific case then the practice of recusal may benefit in that case so, it is the practice to have impartial and unbiased justice. One of the most glaring example thereof, is the incident, when Justice K. S. Viswanathan, the sitting Supreme Court Judge has recused himself from hearing a matter concerning the Madras Bar Association even though the parties involved did not raise the issue of conflict of interest14. The Bangalore Principles of Judicial Conduct, 2002 has also laid down some basic principles for recusal or judicial disqualification as are following-
1) “A Judge shall disqualify himself or herself from participating in any proceeding in which
the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially.”
2) “The judge has actually bias or prejudice concerning a party or personal knowledge of
disputed evidentiary facts concerning the proceeding.” 14 Elephant G. Rajendran vs Registrar General High court of Madras and Ors., SLP(c) no. 3932/2024 (and connected cases))
3) The judge previously has served as a lawyer or was a material witness in the matter in
controversy.”
4) “The judge or a member of the judge’s family has an economic interest in the outcome of
the matter in controversy. ”15 F. UNCLE JUDGE SYNDROME In its 230th Report, the Law Commission of India addresses the issue of the appointment of 'Uncle Judges' within the High Courts. The report stipulates that judges who have relatives practicing in a particular High Court should be precluded from being appointed to that same High Court. The unpopular “Uncle Judge Syndrome”, also referred as the malpractice of Nepotism in general sense, is a corrupt practice when relatives of a judge are favored by delivering judgments in their favors or allowing them any other kinds of relief sought by them, deliberatively and not on the merits, in order to ameliorate their positions in the Bar or in general, to bolster them to become more popular and to get fame and popularity. In the case of Raja Khan vs. U. P. Sunni Central Wakf Board & Anr.
16, the Hon’ble Supreme Court through Justices Gyan Sudha Misra and Markandeya Katju, pointed out this preposterous and obstreperous situation in the High Court of Allahabad and observed that, "Something is rotten in the State of Denmark", said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court, as this case illustrates. [The Allahabad High Court] really needs some house cleaning... even if he has to take some strong measures, including recommending transfers of the incorrigibles. ” INSTANCES- Some excoriating and besmirching examples in the recent history of Indian Judiciary are- 15 See, The Bangalore Draft Code of Judicial Conduct, 2002 adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, November 25-26, 2002.
16 Raja Khan vs. U.P. Sunni Central Wakf Board & Anr., 2010 AIR SCW 7297.
1. Justice P. Sathasivam- After serving as the 40th Chief Justice of India, holding the office
from 2013-2014, he was appointed as a Governor of Kerala from 2014 to 2019 under the Modi Government, allegedly, for favoring the government in few cases. Former CJI VN Khare criticized the government’s decision and said, “Controversy may arise in the matter. People will like to align with the party in power if he has appointed by that regime. So, they will try to link him with the government in power.”
2. Justices Rajan Gogoi, S.A. Nazeer and Ashok Bhushan- It is alleged that after the
unanimous majority judgment of 5:0 in the controversial case of Ayodhya Ram Mandir Babri Masjid dispute17, the judges constituting the 5-judge bench that delivered the judgment had been given a treat for the same by the Modi Government. Justice Ranjan Gogoi who retired as Chief Justice of India in 2019 was egregiously nominated just four months later, by the president as a member of Parliament in the Rajya Sabha. Justice Ashok Bhushan who retired as a Judge of the Supreme Court of India, just after four months later his retirement, was appointed as a chairperson of National Company Law Applied Tribunal. With this appointment, the NCLAT got a job as the head after a time-gap of almost 20 months following retirement of the first chairperson Justice S Mukundopadhyay.
Justice S Abdul Nazeer retired as a judge of the Supreme Court and a month later was appointed as a third governor of Andhra Pradesh since the state's split.
3. Justice Chitta Ranjan Dash- In his farewell address, he expressed his affiliation with the
Rashtriya Swayamsevak Sangh (RSS) and acknowledged the significant contributions of the organization to his personal development. He indicated his willingness to reaffiliate with the RSS, after a separation of more than 37 years, contingent upon their assessment of his suitability for reintegration. 17 M. Siddiq (D) Thr. Lrs. vs Mahant Suresh Das, Civil Appeal Nos 10866-10867 Of 2010 (Decision on 9th November, 2019)
4. Justice A. Gangopadhyay- He resigned from his position as a sitting Judge of the Calcutta
High Court to affiliate with a political party and participate in the forthcoming General Election. This action has reignited the previously subdued discourse regarding the role of judges in constitutional courts and their aspirations for political office, often framed as a "call to duty." He has openly acknowledged that he was in communication with a political party prior to his resignation. Such public political engagements by former judges, particularly in the absence of a designated cooling-off period, adversely affect public perception, as it is essential that "justice should not only be done, but should manifestly and undoubtedly be seen to be done."
5. Justice R. Arya- Merely three months following his retirement, he, a former judge of the
Madhya Pradesh High Court, affiliated himself with the Bharatiya Janata Party (BJP). He articulated that his choice to associate with the BJP is rooted in a profound conviction that the party's ideology closely aligns with his own principles. Arun Jaitley, Former Law Minister, once said in the Parliament “There are two kinds of judges, those who know the law and those who know the law minister. We are the only country in the world where judges appoint judges. Even though there is a retirement age, judges are not willing to retire. Pre-retirement judgments are influenced by post-retirement jobs. ” CONUNDRUM- In jurisdictions where judges are subject to term limits, it is a prevalent practice for retired judges to pursue careers in both the public and private sectors.
This phenomenon raises concerns regarding the potential influence of post-retirement opportunities on judicial decisionmaking. If this influence is substantiated, it undermines the principle of a fair and independent judiciary, which is essential for the effective functioning of a representative democracy. Within the context of the Indian judiciary, there has been a notable trend over the past 15 years in which retiring Supreme Court Justices are increasingly appointed to esteemed government positions. This trend has attracted criticism for potentially fostering a bias in favor of the government in cases that are politically sensitive. Allegations of corruption in this context often manifest as a quid pro quo arrangement, wherein judges may issue rulings favorable to the government in anticipation of receiving post-retirement employment as a reward.
Nevertheless, it is imperative to acknowledge the identification challenge inherent in this situation. The observed correlation between favorable judicial rulings and subsequent government appointments may not necessarily indicate a manipulation of judicial decisions for the sake of securing such positions. Instead, it may reflect intrinsic characteristics of the judges, such as their qualifications for specific roles or their ideological alignment, which could independently influence both their judicial outcomes and their post-retirement career trajectories.
18 To comprehend this framework, it is essential to recognize that a judge's susceptibility to pandering incentives in a given case is influenced by two interrelated factors: 1) the political significance of the case, and 2) the timing of the judge's retirement, specifically whether it occurs with a minimum of one year remaining in the government's term, thereby allowing the possibility of receiving a prestigious position as a reward. The tradition of obtaining political affiliations by the sitting or retiring judges culminates not to the specific identification of individual acts of corruption, however, it identifies the corruption statistically at an aggregate institutional level.
CONSEQUENTIAL JUDICIAL INDOLENCE- Excessive Political Meddling into Judicial Affairs leads to ‘Judicial Indolence’, as the Judges obtaining political affiliation presume themselves to be immune and impune from any kind of accountability towards both the ‘Political Sovereign’, i. e. , ‘We, the people’ and the ‘Legal Sovereign’, i. e. , ‘The Constitution of India’. "Judicial indolence" generally, refers to a lack of diligence, activity, or interest on the part of the judiciary. It implies a tendency towards: • Delay: Unnecessary slowness in handling cases. • Inaction: Failure to take required steps or to enforce rulings. 18 ANEY, Madhav S. ; DAM, Shubhankar; and KO, Giovanni. ‘Jobs for justice(s): Corruption in the Supreme Court of India’, 60(3), The Journal of Law and Economics, pp. 1-38, (2017).
Negligence: A lack of proper care and attention to judicial duties. • Apathy: A lack of concern or feeling about the responsibilities of the court. Therefore, it is a serious issue that undermines the principles of justice and fairness. This situation is very well consonant to the legal maxim of "Justice delayed is justice denied".
IV.
RAMIFICATIONS OF POLITICAL OVERREACH IN JUDICIARY
The judicial function should remain independent from the influences of the political system and the interests of dominant social groups. Its primary responsibility is to assess the legality of state actions, uphold justice, and establish overarching constitutional and legal principles. This reflects the clear intent of the framers of our Constitution. Following issues may be entailed from superfluous political intervention in judiciary-
1. EROSION OF PUBLIC TRUST-
The fiduciary relationship of ordinary people with the Judiciary legitimizes the authority of the Judiciary both as a governmental institution and for individual judges. The general public's inclination to respect judicial decisions is enhanced when such decisions do not require enforcement by law enforcement agencies. Moreover, the trust that the public places in the legal system significantly contributes to the readiness of the executive and legislative branches to adhere to judicial rulings.
Thus, one can deduce that any politically motivated act by a Judge, including joining a political party after retirement, without showing any signs of hesitation or sluggishness therefor, or obtaining any other kind of political affiliation whatsoever, has a direct, eloquent and explicit impact on both judicial fraternity and common men, in such a manner that they develop a perception that, although the judge concerned was righteousness and nonchalant about any political bait at the time of discharging his official functions, ‘all the judgments delivered, order passed or any activity done while in office was somehow, influenced by fanatic political ideologies’. This perception not only besmirches the repute and image of the concerned judge but tarnishes the institutional sanctity of the Judiciary.
2. DETERIORATION OF JUDICIAL INTEGRITY-
A judge who is insulated from Political Influence can limpidly be called as an ‘independent’ judge discharging his judicial functions. Moreover, one has to keep in mind that, Judicial independence should not be allowed to become "a shield for judicial misbehavior or incompetence. " Judicial independence is merely the other side of the coin from judicial accountability. “It is the personality of the judges that will determine in the truest sense, the extent of judicial independence and autonomy”, said by Justice B. V. Nagarathna. 19 The personality traits of judges play a crucial role in shaping the degree of judicial independence and autonomy. The independent exercise of judicial authority is not merely a privilege afforded to judges; it is also an obligation they must fulfill.
Consequently, it is essential for judges to render decisions based on their own understanding of the law and their moral compass, free from external influences. The judiciary serves as a safeguard against potential abuses of power by the Executive branch, and as such, it should not be perceived as subordinate to it.
3. OTHER REPERCUSSIONS-
The other repercussions can be illustrated in the following termsa) It leads to “Institutional Corruption”, which is a serious menace tormenting the whole judiciary as an institution. b) A compromised judiciary weakens the checks and balances of the governmental system that are requisites for a healthy democracy. Hence, an authoritarian drift, where those in power abuse their authority without the fear of legal consequences can lead to ‘Destabilization of Democracy’, stemming from ‘weak governance in judiciary’. 19LiveLaw News Network, “Political Insularity Is Critical To Independence Of Judiciary : Justice BV Nagarathna”, LiveLaw, (17 Nov, 2024, 3:12 PM), https://www. livelaw.
in/top-stories/political-insularity-is-critical-toindependence-of-judiciary-justice-bv-nagarathna-275465 c) Political intervention can lead to situations where the laws, which are apparently equal for law, are differently applied on different individuals based on the political incentives that they can offer. This would be a limpid “Unequal Application of the laws” and consequential infringement of ‘Equality before law’ and ‘Equal Protection of law’, which are the fundamental rights enshrined under Article 14 of the Constitution. d) Proliferation of ‘Inadequacy and Incompetency’ in the Judiciary would be another envisaged consequence of Political Overreach. V.
REMEDIES FOR AMELIORATING THE SITUATION
Apart from tons of legislative measures, there are following other methods that can be observed while curbing this pervading practice-
1. Expansion of Security of Tenure- The Constitution of India, already provides with a lot
of provisions in relation to ‘Security of tenure’ of the judges of Higher Judiciary. Although, after observing the proliferation of lucrative political opportunities and the augmentation of the propensity towards it, following measures are on the tablea) Increasing the age of retirement of Judges of the Supreme Court and High Courts b) Equalizing both the age of retirement of Judges of the Supreme Court and High Courts on the same par.
2. National Judicial Commission- Setting up a National Judicial Commission is a very
urgently needed step towards judicial accountability in our country. The establishment of an NJC in our country is considered quintessential in order to assess the important judicial matters such as the appointment of judges, managing the code of conduct of the judges, taking and responding to any complaints regarding any judge or other member of the judiciary, investigating the reports of miss-conduct against a judge and recommending actions to the parliament against them if found guilty. A single commission can replace most of the obsolete system regarding the handling of the functioning of the judiciary in our country.
Recently, in 2022, a bill was introduced in Rajya Sabha for the establishment of the same, in order to resuscitate the provisions of Articles 124A, 124B and 124C of the Constitution inserted by the 99th Constitutional (Amendment) Act, 2014 which were later struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and others versus Union of India. 20 Hence, a judicial commission without involving any political personalities could be set up for ensuring judicial independence as well as judicial accountability.
3. Judicial restraint against Activism- The terms, “Judicial activism" and "Judicial
Restraint" are utilized for describing the decisiveness of the judiciary and both the terms are antithesis of each other. There is a need for the judiciary to apply some limitations in its functioning. The case of “State of Rajasthan vs. Union of India”21 can be taken particularly, for example, of judicial restraint where the court rejected a petition based on its involvement of a political angle and therefore, the court showed reluctance to indulge into the matter. Furthermore, Self-regulation of Judges by their own conscience has also always been a welcoming and guiding light for people occupying constitutional positions.
For instances, some retired judges, like Justices Chelameswar, Kurian Joseph and former CJIs Kapadia, Lodha and Thakur, denied the post-retirement plunge in politics or nomination to political posts, which manifested their audacity to perpetuate their alacrity to be judicially independent, unblemished from any scars.
4. Cooling-off Period- Individuals who retire from sensitive positions should be proscribed
from accepting subsequent appointments for a designated period to mitigate the potential for corruption or collusion among involved parties. The rationale behind these cooling-off periods is to sever the connection between prior incumbency and new appointments by introducing an adequate temporal interval. In the context of judiciary, Former CJI R M Lodha recommended a cooling-off period of at least 2 years and opined that, “No Chief Justice of India, Supreme Court judge, a High Court Chief Justice or a High Court judge 20 Supreme Court Advocates-on-Record Association and others versus Union of India, WRIT PETITION (CIVIL) NO. 13 OF 2015
21 State of Rajasthan vs. Union of India, 1977 AIR 1361.
should accept any constitutional post or government assignment after retirement. In cases where there are statutes requiring a retired judge to head a tribunal or a commission, laws should be amended to make the cooling-off period mandatory.” In the recent case of G.V. Harsha Kumar vs. Election Commission of India & Anr.,22 SC, however, refused to entertain a plea filed with the intention of seeking imposition of a cooling off period on public officials to restrain them from contesting elections on political party tickets immediately after discontinuation or termination of their service. Hence, though the introduction of cooling-off period has yet not been legislated as any statute by the Parliament, however, if introduced, it will inculcate confidence in the public at large and negate any allegation of quid pro quo.
5. Curb the Tribunalization- In order to discourage the political allurement for the retired
judges excessive tribunalization should also be restrained. This can be done by two waysfirstly, by limiting the establishment of excessive tribunals for unwarranted matters or secondly, by prescribing conditions for appointment in tribunals, for example, number of constitutional matters or PILs heard and disposed of, number of years of practice or service as judgeship, research expertise and academic prowess, time-period of being a judge on a specific bench handling particular matters and the significance thereof, vis-à-vis ‘public or common interest’, etc. In conclusion, one may deduce that, despite of these remedies, the Judicial Integrity can be assured and secured only when these remedies are properly implemented in the judicial diaspora of the India.
The legal principle that justice should not only be done, but must also be seen to be done, that emphasizes on the importance of transparency and public trust in the legal system, should be fairly carried out. VI.
CONCLUSION
Indian Judiciary and Indian Supreme Court, in particular is considered to be one of the most 22G. V. Harsha Kumar vs. Election Commission of India & Anr. , WPC 205/2024 powerful and influential decision-makers in the whole world of judicial fraternity. From immense power of ‘Judicial Review’, in the shape of ‘Judicial Activism’ to the move of attenuating the procedural claptrap of ‘locus standi’, by introducing the ‘Public Interest Litigation’, the Apex Court has always shown the alacrity to do complete justice. However, when faith is entrusted or confidence is reposed on someone, the very quintessential foundation thereof needs to be vigorous enough to bear the shocks of aberrations. Once the same is dilapidated by any instance of anomaly, the same needs a considerable amount of time to get restored.
There have been egregious incidences in the history of Indian Judiciary, supported by some capricious judicial trends which are prevalent in the recent times, that has both astonished and shattered the public faith and confidence in the whole Judiciary as the institution. If the preamble to our constitution is considered a representation of the aspirations and ethos of the populace, it is evident, even to a non-expert, that one of the primary objectives articulated by the framers of the constitution is the establishment of JUSTICE—social, economic, and political—prioritized above other goals. It is limpidly discernible by analyzing the recent trends in India, that, as soon as judicial accountability shudders, political interference and vested interests would pour in to diminish the credibility of the institution. Independence and corruption are self-regulatory and cannot exist together.
To maintain the independence in judiciary powerful measures must be taken to remove and prevent corruption. Post-retirement employments of judges are a risk to judicial independence. The functional and financial independence of courts for fast and effective delivery of justice and functioning of courts. Accountability must commensurate with judicial independence and neutrality.
Hence, although the solutions seem to be enormous and strenuous, a transparent, accountable and a prudent regulatory framework based on international standards consisting of ethical principles should be laid down in order to enforce the high code of ethics on the part of all the stakeholders of the Indian judicial system, particularly Bench and Bar, as an substantial and adequate transparency in an influential and significant sector like Judicial system is crucial both to the rule of law and the existence of the nation.