When judges become politicians, what does the law say?

Abhijit Gangopadhyaya

On March 3, sitting Calcutta High Court judge Abhijit Gangopadhyay, made waves after media reports emerged that he would resign his judgeship and enter politics.

"Tomorrow will be my last day as a judge. I will not hear or adjudicate any matter and will release some cases which have been part-heard in my court," he said.

No stranger to controversy, Gangopadhyay had recently engaged in a war of words with a judge senior to him when the latter stayed  an order of Gangopadhyay's. The Supreme Court ultimately transferred the issue before itself to avoid further confrontation.

As per records available on the internet, Gangopadhyay, who was born in 1962, was expected to retire in 2024 as the retirement age for high court judges is 62.

To be sure, Gangopadhyay is not the first judge to resign from judgeship to join politics; he is also not the first judge to have been embroiled in controversy over alleged political leanings.

'Moneycontrol looks at judges who have moved from the judiciary to the legislature, and some of those who have made the reverse journey.

Have politicians been made judges in the past?

Baharul Islam was a member of the Congress party who resigned from the Rajya Sabha to become a judge of the Gauhati High Court. After he retired as Chief Justice of the court, he was recalled and made a judge of the Supreme Court. He later resigned from the Supreme Court to contest elections and then became a Rajya Sabha member again.

MC Chagla, a legendary judge of the Bombay High Court, formed his own party, the Muslim Nationalist Party. In 1948, he became Chief Justice of the Bombay High Court and remained in that position till 1958. After his stint as a judge, he served as India's education minister from 1963 to 1966 and the country's external affairs minister till September 1967.

Mohammad  Hidayatullah was the Chief Justice of India from 1968 to December 16, 1970. He served as the vice president of India for a brief while in 1969 when President Dr Zakir Hussain died. In 1978, he was elected vice president unopposed and served from August 1979 to August 1984.

VR Krishna Iyer became a Supreme Court judge after serving as a minister in Kerala’s Communist Party government, where he was an independent MLA who joined the cabinet. Iyer’s political affiliations and the judgments he had delivered are spoken of even today. In fact, prominent members of the bar, including Soli Sorabjee, had protested Iyer’s appointment to the Supreme Court. However, it is now widely accepted that he was responsible for authoring some of the most forward-looking rulings on human rights.

Iyer was the last judge to be appointed to the Supreme Court after having served as a minister in a government.

What is the situation now?

Persons with open political affiliations have not been made judges in the recent past. However, the collegium has not shied away from appointing persons with political backgrounds. For instance, retired CJI Ranjan Gogoi’s father was a former chief minister of Assam.

BR Gavai admitted in open court that he comes from a political background. In fact, during the hearing of the case pertaining to Congress leader Rahul Gandhi’s disqualification over certain remarks, he offered to recuse, owing to his family’s connections with the Congress party.

Similarly, JB Pardiwala’s father Barorji Pardiwala contested election as the Congress nominee for the Valsad assembly constituency in Gujarat and was made speaker of the seventh state assembly in 1990.

Ultimately, since the collegium is responsible for appointment of judges across the country, a lot of deliberation and research goes in before recommending a name. Appointing a person with political affiliations depends on the members of the collegium, which changes every time a judge retires.

What does the law say?

Technically speaking, the Constitution does not bar a person with a political affiliation or a person who had been a politician from becoming a judge.

High courts: For the high courts, Article 217 (2) of the Constitution of India states: "A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and —

(a) has for at least 10 years held a judicial office in the territory of India; or

(b) has for at least 10 years been an advocate of a High Court or of two or more such courts in succession."

These are just broad parameters; the task of selecting candidates to be made judges in the Supreme Court and the high courts is left largely to the collegium. The memorandum of procedure (MoP), a playbook for appointment of judges between the government and the judiciary, prescribes the mechanism and timeline for appointment of judges to high courts.

While the Constitution and the MoP speak of eligibility and procedure, it does not mention that members having political affiliations should not be made judges. Thus, it is clear that there is no legal bar on people with political links becoming judges. However, the collegium and law minister can object to a person’s recommendation owing to their political affiliations.

There are no records of the correspondence between the collegium and the law minister prior to 2018. Hence, even if there were objections on this ground, the public would not be privy to the information. Reasoned collegium resolutions are a recent phenomenon introduced by current CJI DY Chandrachud.