A Politician Judge – Judiciary's Bane And Nobody's Gain

A judge may deal with politics, for the very Constitution is a political document. Sen expressed that a Judge had to be “free from fear or temptation and free from the allurements of holding some office in the executive line or in the political field” and desired that a “Judge who has retired will not be able to engage himself in any office of emolument under the Government is any field of activity…otherwise there is always the phenomenon of the Judge while in office aligning himself with a political party…” Jaspat Roy Kapoor proposed the following amendment to draft Article 103: “No judge of Supreme Court shall be eligible for further office of profit either under the Government of India or under the Government of any State after he has ceased to hold his office.” He also advocated for a complete bar on executive office for those who had held office as a Judge of the High Courts or the Supreme Court. In response to the amendments suggested, Babasaheb Ambedkar said that “the chances of influencing the conduct of a member of the judiciary by the Government are very remote” and that “there are very many cases where the employment of judicial talent in a specialized form is very necessary for certain purposes.” Dr. Ambedkar would justify his position stating “the relation between the executive and judiciary are so separate and distant that the executive has hardly any chance of influencing the judgment of the judiciary.” The issue came to the forefront immediately with the first retirement from the Supreme Court in 1951 – that of the distinguished Justice S. Fazl Ali – who was appointed Governor of Assam. The Law Commission recommended: “ The Judges of the Supreme Court should be barred from accepting any employment under the Union of a State after retirement, other than employment as an ad hoc Judge of the Supreme Court under article 128 of the Constitution.” The Law Commission also recommended a similar embargo upon High Court Judges. It will be irretrievably damaging for the judiciary as an institution if every judgment by a person is questioned, simply because such person has demitted office as a Judge, and taken up a political office and aligned to a political party/ideology – the perception that would go out is, as stalwart Arun Jaitley pithily put it - “Pre-retirement judgments are influenced by post-retirement jobs.” What would perhaps be in order is a Constitutional Amendment putting an absolute bar on the holding of any constitutional office for a period of five years from demitting office – by retirement or resignation, to protect the independence of the judiciary – as was debated in the Constituent Assembly – as experience has taught us, is desirable.