Judges Joining Politics: Constitutional Restrictions, Concerns and Examples

Context: Chief Justice of India B R Gavai has said that judges taking up government appointments “immediately after retirement” or resigning to contest elections “raises significant ethical concerns and invites public scrutiny”.

Concerns With Judges Joining Politics

• Violation of Oath: Constitutional functionaries swear to act without fear or favour. Political affiliations post-retirement raise doubts about their impartiality during service.
• Threat to Institutional Independence: Risk of judgments or decisions being influenced to gain future political rewards undermines the integrity of constitutional offices.
• Inconsistent Cooling-Off Period Norms: Civil Services Rules mandate a cooling-off period before joining private jobs, but there’s no such rule for political roles.
• Breach of Bangalore Principles (2002): Values such as impartiality, integrity, and propriety are compromised when judges enter political life soon after retirement.
• Loss of Public Trust: Judicial pronouncements (e.g., All India Judges’ Association v. Union of India, 1991) highlight how post-retirement roles may lead to erosion of public confidence in constitutional authorities.

Constitutional Restrictions on Post-Retirement Benefits

• Article 124(7): Retired Supreme Court judges are barred from practising law before any court or authority in India.
• Article 220: Retired High Court judges cannot appear before any court or authority except the Supreme Court or other High Courts.
• Article 148(4): The Comptroller and Auditor General (CAG) is ineligible for any future office under the Central or State government after retirement.
• Article 319: UPSC Chairman and Members are barred from taking up further government employment after demitting office.

Recommendations & Judicial Opinions

• Election Commission (2012): Suggested a post-retirement cooling-off period before bureaucrats can enter politics.
• Attorney General’s View: Supported cooling-off for private jobs due to conflict of interest, but opposed restrictions on political entry, citing democratic rights.
• Supreme Court (2022): Rejected a plea for imposing cooling-off periods, stating it’s a legislative matter.

Judicial Conduct and Expectations

Bangalore Principles of Judicial Conduct (2002)

• Core Values: Independence, impartiality, integrity, propriety, equality, competence, and diligence.
• Focus: Eliminate bias in decisions and maintain public trust in the judicial system.
• Restrictions:
  • Judges cannot make public statements influencing ongoing cases.
  • Recusal is mandatory when impartiality is compromised.
• Expected Behaviour: Conduct upholds the dignity and strengthens the image of the judiciary.

Legal and Ethical Discussions

• Judgeship as a Sacrifice: Becoming a judge often means a significant personal sacrifice for lawyers, as it restricts their freedom and limits personal aspirations due to the necessity of maintaining judicial restraint.
  • Despite these sacrifices, judges of constitutional courts enjoy certain powers and privileges not available to others, highlighting a unique aspect of their role.
• Impeachment Process: The Constitution, through Article 217 and Article 124(4), specifies that impeachment by Parliament is the sole method for removing a judge, a process known to be complex and rarely successful.
• High Court’s Authority: Article 215 grants High Courts the status of a court of record, with the power to enforce contempt of court, further emphasising the judiciary’s authority.

Opportunity for Judicial Reform

• This incident presents an opportunity for the Chief Justice of India and the Supreme Court to address judicial aberrations and reinforce ethical standards.
• There’s a call for the Supreme Court to explicitly forbid judges from engaging in politics post-resignation, aligning with the oath of office and global judicial conduct norms.
• The necessity for judge-made law on this issue is highlighted, given the unlikely action from Parliament on judicial conduct reform.

Way Forward

• Legislate a Cooling-Off Period: Parliament should enact a law mandating a minimum two-year cooling-off period before retired officials take up political roles.
• Raise Judicial Retirement Age: Increasing the retirement age to 70 can reduce incentives for post-retirement appointments.
• Criteria-Based Tribunal Appointments: Appointments should consider factors like nature of cases handled, judicial experience, and domain expertise.
• Promote Self-Regulation: Ethical restraint by individuals in high offices, as exemplified by Justices Chelameswar, Kurian Joseph, and former CJIs Kapadia, Lodha, and Thakur, should be the norm.

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