It all happened in a matter of days: A judge of the Calcutta high court announced that he would be resigning his job two days later, goes to the court the next day to complete pending official work and, thereafter, announces his resignation. And along with it comes the announcement that he would be contesting the next Lok Sabha election from the state as a candidate of the party in power at the Centre. This can happen only in India and only in these times.
That the judge passed a series of orders to the inconvenience of the state government in recent times is a matter of little consequence; what must bother the people who believe in constitutional democracy and the independence of judiciary, which is an inalienable feature of a democratic constitution, is to put to serious introspection the question whether members of the judiciary keep a distance from the political parties and the interests they advance.
Our Constitution has bestowed on constitutional courts — the high courts and the Supreme Court — vast powers, including the power to interpret the Constitution itself. Under Article 226, the high courts are the custodians of the fundamental rights of the citizens and are empowered to issue appropriate orders to enforce them. In fact, the guarantee of the fundamental rights, which are the citizen’s shield against the state, are at the mercy of the high courts and the Supreme Court; it is to these courts that people rush to save themselves from an omnipotent state.
The courts are also called upon to adjudicate between persons, organisations, institutions and governments — entities which have a legal standing. In a highly polarised world such as ours and in highly surcharged times like these, it is an important task for anyone to remain dispassionate about the goings-on in the surroundings. Especially when every democratic institution has come under attack and has been systematically weakened. It is for the members of the judiciary to prove that they are above board and are able to discharge the honourable task society has assigned them. It is for them alone to demonstrate that they have all the qualifications to sit in judgment over disputes, unaffected and uninfluenced, and that there are no conflicts of interest.
It is not a recurring feature in India that judges walk into political chambers straight from the judges’ chambers. At least not yet. There are some honourable exceptions which include a couple of Supreme Court judges who got themselves appointed in gubernatorial positions and one who got nominated to the Upper House of Parliament soon after their retirement. We as a nation have not yet thought it a bona fide act to go back and check the judges’ antecedents from the political point of view. It is not warranted, either.
Theoretical positions apart, it is time that our lawmakers thought about mechanisms that should insulate the members of the higher judiciary from the prying eyes of the world of politics. People at a certain level in the bureaucracy are mandated to spend a cooling time after retiring from government service before they take up a position elsewhere, especially in areas where their decisions could have influenced the fortunes of potential employers. A former Union law minister of India is on record for stating that “pre-retirement judgments are influenced by post-retirement jobs”. We have reached a time when judges do not wait for retirement. Hence it is time we faced the reality and acted in good faith, taking the judiciary into confidence.
