The judge’s code

Members of the judiciary should follow a self-imposed discipline — and be seen to do so too

FORMER JUDGE ABHIJIT Gangopadhyay officially joined politics within 48 hours of demitting office. There is nothing wrong in how he chooses to occupy himself post his resignation, which came five months before his retirement. His desire to serve the electorate of his home state is laudable and one wishes him the best in his new innings.

Admittedly, Gangopadhyay is not the first judge to demit office and join politics. Former Chief Justice of India, K Subba Rao, also resigned three months prior to his retirement. A staunch supporter of civil liberties, CJI Rao was part of the majority decision which held that Parliament has no authority to take away fundamental rights. Upon his resignation, CJI Rao became the Opposition’s candidate for the Presidential elections. Given the electoral college system of indirect voting to elect the President, Justice Rao wasn’t elected as the ruling party of the time pushed through its candidate.

Next was Justice Baharul Islam who was a seasoned politician active from his youth. He served two terms in the Rajya Sabha and resigned from the house to be appointed as a High Court Judge in his home state of Assam. Islam was elevated to the Supreme Court from where he resigned five weeks before the end of his tenure. Immediately thereupon, he was appointed as a Lok Sabha election candidate, which ultimately did not happen and so he came back as a Rajya Sabha member. This nomination of Islam saw people raise questions about some of his judicial decisions in politically sensitive cases. Justice Gangopadhyay may well face similar scrutiny.

The last instance is of Justice K S Hegde who was first an elected member of the Rajya Sabha, then came back to legal practice and was then appointed as a judge of the Supreme Court of India. After a gap of four years, he successfully contested for the Lok Sabha, and eventually became the speaker of the lower house of Parliament.

Juxtaposed to the above precedents, all of which were several decades ago, what is disconcerting about Gangopadhyay’s foray into politics is that he used his Constitutional highchair as the pulpit from which he broadcast his political ambitions. Political barbs were exchanged in the courtroom and he courted controversy for having run-ins with fellow judges, for giving press interviews about matters pending before him and for breaking rank by summoning documents from the Supreme Court of India. His acts raised questions about judicial propriety, impartiality, institutional integrity and independence. These values are the essential pillars on which the independence of our judiciary rests and form part of the Bangalore Principles of Judicial Conduct of which India is also a member state.

These Principles draw upon the “Restatement of Values of Judicial Life” and were adopted by the full court of the Supreme Court of India in the late 1990s. They resolved that, “a judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.” Did Gangopadhyay’s actions uphold that dignity and help preserve people’s faith in the judiciary?

Notably, in India, the only check on the judiciary's exercise of powers is the selfimposed discipline of self-restraint. As former Supreme Court Judge E S Venkataramiah penned, “A judge should be independent of himself. A judge is a human being who is a bundle of passions and prejudices, likes and dislikes, affection and ill will, hatred and contempt and fear and recklessness. In order to be a successful judge these elements should be curbed and kept under restraint and that is possible only by education, training, continued practice and cultivation of a sense of humility and dedication to duty... It is the inner strength of judges alone that can save the judiciary. The life of a judge does not really call for great acts of self-sacrifice; but it does insist upon small acts of self-denial almost every day.”

Quite contrastingly, on numerous occasions, Gangopadhyay drew the light upon himself. So much so that the Supreme Court on its own stayed his judicial decisions and reallocated cases pending before him to other benches. As the French philosopher, Michel De Montaigne said, and what is often cited in Indian jurisprudence “Were I not to follow the straight road for its straightness, I should follow it for having found by experience that in the end it is commonly the happiest and the most useful track.” The straight and narrow merits being walked upon even if one is the lone one treading it. After all, as the revered son of Bengal, Rabindranath Tagore, wrote, “Ekla chalo re!”

The writer is a senior advocate in Delhi