Political Diary

New Delhi, 12 March 2024

From Your Lordship to Jan Sevak

CONSTITUTIONALLY JUST NOT DONE!

By Poonam I Kaushish

Now days when you see someone holding his nose you don’t know whether it’s pollution or politics. Either way the net result is the same. Increasing political pollution replete with contaminated smog and toxic waste. But the latest in an ever-growing series of political skullduggery was an unimaginable onslaught which threatens to undermine the independence and impartiality of a Constitutional body: Judiciary.

Who could imagine that the man flashing the Constitution, cracking the judicial whip and doling out unpalatable orders to culprits would one day succumb to political temptation himself? How else does on describe Calcutta High Court Judge Abhijit Gangopadhyay somersault from the high judicial Bench to the rough and tumble of politics by joining BJP last week. All, for name and fame in the political sun. Never mind if he knocked a big blow to the judiciary, thumped people’s faith in courts, rapped our moral conscience and smacked our last resort for justice.

And, this after accusing a brother judge of “working for a political Party” which marked a low for the judiciary and relationship between Government and Court in West Bengal 24 January.

Importantly, the judge’s decision to join politics and manner and context in which it was taken raises questions of judicial propriety and impartiality. But it also stands out for three reasons. One, his record in court was full of controversy. Two, for over two years these controversies showcased an unseemly spectacle of a sitting judge at loggerheads with an elected Government in a manner that invited questions of partisanship.

Three, his political foray will have a bearing on dispensation of justice. Could not millions of litigants think that a judge was harsh on the Administration on the eve of his resignation in the hope of reward from BJP?

Take the job scam case September 2022. While hearing the matter, Gangopadhyay all but accused Mamta’s nephew and TMC leader Abhishek Bannerjee of “amassing wealth” to a TV channel. This lack of “judicial propriety” led Supreme Court to order Calcutta High Court Chief Justice to assign the case to a different Bench. In January he again overruled a larger Bench in a case regarding admissions to State medical colleges and made irresponsible remarks against a colleague.

What Gangopadhyay doesn’t seem to realize is that by joining BJP he has inflicted an avoidable hurt to an important Constitutional pillar. A body blow that would not be easy to recover from. Once the “Conscience Keeper” of democracy falls prey to political sharks, there is no salvation but a steady slide downhill.

His political foray now casts a shadow over decisions he made on the Bench. His justification for his political turn to BJP ---- insults and barbs of TMC leaders holds little water. Even as the Party accuses him of being a “BJP political worker.”

Arguably, by offering Gangopadhyay a political lollipop, BJP has violated the letter and spirit of the Constitution. Future judges might well be more than willing to bend rules in favour of a particular Party in hope and expectation of reaping political rewards post retirement.

Undoubtedly, it has divided public opinion and is deeply troubling that an institution that plays guardian and watchdog of freedoms and routinely sets the agenda for institutional propriety and probity should be seen to play political favourites. While supporters say Gangopadhyay has shown courage, critics aver this is inappropriate while netas derisively assert the judge has behaved like “a politician.”

Certainly, Gangopadhyay is not the first judge of a Constitutional court to resign and join politics. In 1967, former Chief Justice of India Subba Rao venerated for his famous Golaknath and Kharak Singh judgments resigned three months before retirement to contest the Presidential election as Opposition candidate. And India’s first Attorney General Setalvad castigated famed jurist Chagla for accepting Nehru’s offer of ambassadorship. In 1983 Supreme Court Justice Bahural Islam resigned six weeks before retirement to contest Lok Sabha polls.

Rajiv Gandhi too nominated ex Chief Justice India M.H. Beg for Rajya Sabha which threatened to besmirch judiciary’s fair name was averted when Justice Beg died a few days before formalities were completed. Prime Minister Modi too followed in his footsteps by nominating Justice Gogoi to Rajya Sabha in March 2020, snidely described by Opposition as his reward for Ayodhya judgment.  

What to speak of ex-CJI Ranganath Mishra who was Congress’s Rajya Sabha nominee and Justice Baharul Islam-turned-Congress Lok Sabha MP. Or Punjab and Haryana High Court Chief Justice Rama Jois turned-Governor- BJP Rajya Sabha MP and Supreme Court Judge-turned Congress Rajya Sabha MP-turned Janata Party Lok Sabha MP-turned-Speaker KS Hegde.

Yet again, the country’s first woman Supreme Court judge Justice Fatima Beevi was appointed member of National Human Rights Commission post retirement 1992. In 1997, Beevi was appointed Tamil Nadu Governor where she was in the eye of a political storm over her decision to ignore established Constitutional norms and anoint AlADMK supremo Jayalalithaa as Chief Minister 2001, notwithstanding she could not contest Assembly poll due to her conviction in a corruption case

Or ex Chief Election Commissioner Gill to the Rajya Sabha. I recall, when late Punjab CM Badal remarked that those who held such august offices should not contest on Party tickets, Gill retorted: “Maine koi theka liya sau saal da”. And as mithai was distributed he had conveniently forgotten his halla bol against the political cesspool and his repeated emphasis on values and integrity.

Alas, over the years our leaders have eroded judiciary’s impartiality without outwardly violating the Constitution’s letter. Trust them to find a lacuna and brazenly exploit it. They merrily take advantage of absence of “silence” of our Constitution framers, Constitutional or legal bar on those holding high Constitutional posts from joining politics, fighting elections, holding office or taking a Government appointment.

This is not all. Post retirement judges have become Governors. Recall, the appointment of former Chief Justice of India S Sathasivam as Kerala Governor 2014. India’s second CEC, KVK Sundaram was made the Chairman of the Law Commission on retirement. Yet again in 1986, the CEC, R.K. Trivedi, was rewarded with the Governorship of Gujarat within months of retirement.

Clearly, the BJP does not appear to have been well-advised in admitting Gagopadhyay. This unfortunate decision can only snowball causing grave injury to the system unless the statute is changed to bar Chiefs of Constitutional Offices like CJI, Judges, CECs, and CAG etc from either joining a Party, accepting further appointment by Government on retirement.

Plainly, such a step is needed to preserve and protect independence of judiciary since nobody seems to care a damn for healthy and time-honoured conventions. This is all the more necessary in view of the “aberration nee pattern” that is slowly but surely seeping into the body politic --- and is certain to receive encouragement from the Gangopadhyay episode.

Undeniably, the arms-length distance between Executive and Judiciary along-with mutual respect needs to remain intact even after demitting office. If arms length is swapped by a warm embrace, it warns of grave danger.

The moot point is: Can India afford to allow persons holding Constitutional offices to accept “rewards” from Parties after retirement? One hopes that Gangopadhyay case does not became the norm and judges desist from rising to the bait. This does not auger well for the future of India’s democracy. ------ INFA.

(Copyright India News & Feature Alliance)