Probity: The cornerstone of the rule of law

Former Calcutta High Court judge Justice Abhijit Gangopadhyay officially joined politics within forty-eight 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, Justice 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 was invited to accept the opposition party’s candidature 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. Justice Islam was elevated to the Supreme Court, from where he resigned five weeks prior to 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 Justice Islam raised questions on whether there was any quid pro quo between his nomination and his judicial decisions while sitting as a judge, some of which were favourable to the government of the day, especially in politically sensitive cases. Justice Gangopadhyay and his judgments are facing similar scrutiny.

The last instance is of Justice KS Hegde, who was first an elected member of the Rajya Sabha, before coming back to legal practice and then being appointed as a judge of the Supreme Court of India. He resigned from the Bench upon being superseded by someone junior to him, and after a gap of four years, successfully contested the Lok Sabha elections. He eventually became the Speaker of the Lower House of Parliament.

Juxtaposed with the above precedents, all of which were several decades ago, what is disconcerting about Justice Gangopadhyay’s foray into politics is that he used his Constitutional highchair as the pulpit from which he broadcast his political ambitions. His courtroom often became an “adda” where political barbs were exchanged and he courted controversy for having run-ins with fellow judges. He gave press interviews about matters pending before him and broke rank by summoning documents from the Supreme Court of India. In doing so, his acts raised questions about judicial propriety, impartiality, institutional integrity and independence, all of which must be preserved to maintain the sanctity of our judicial institutions and their role in upholding the rule of law. In fact, these values are the essential pillars on which the independence of our judiciary rests and form part of the Bangalore Principles of Judicial Conduct.

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 Justice Gangopadhyay’s actions uphold that dignity and help preserve people’s faith in the judiciary? Were all his actions in line with his oath of office requiring him to bear allegiance only to the Constitution of India? Did he act based on his personal convictions, political leaning, ideological differences, or basis the law which he swore to uphold above everything else?

Notably, in India, the only check on the judiciary's exercise of powers is the self-imposed discipline of self-restraint. As retired Supreme Court judge Justice ES 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, Justice 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. This is adequate proof that he strayed away and his actions eroded public trust. As the French philosopher, Michel De Montaigne said,

“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. As the revered son of Bengal Rabindranath Tagore wrote, Ekla Cholo Re!

Satvik Varma is a Senior Advocate of the Delhi High Court.