GS Paper II
News Excerpt:
A retiring High Court judge has declared himself to be a lifelong member of the RSS.
More about the news:
A retiring judge of the Calcutta High Court during his farewell speech, openly acknowledged his longstanding membership with the Rashtriya Swayamsevak Sangh (RSS).
Background:
Pre collegium system:
- According to the book "Supreme Whispers: Conversations with Judges of the Supreme Court of India 1980-89" by Abhinav Chandrachud, prior to the 1970s, the political ideology of judicial candidates was not a significant factor in the judicial appointments process.
- However, this changed following setbacks faced by the Indira Gandhi government in the Supreme Court during cases such as Golak Nath, bank nationalization, and privy purses.
- The book highlights the case of Justice M N Chandurkar, a former Chief Justice of the Bombay and Madras High Courts, whose elevation to the Supreme Court was obstructed due to alleged links with the Rashtriya Swayamsevak Sangh (RSS).
- S Mohan Kumaramangalam, a minister in Indira's cabinet and former advocate general of Madras state, openly advocated the idea that the ideology of judges should be taken into account when determining their suitability for appointment to the Supreme Court.
During collegium system:
- Since the 1990s, the appointment process for judges in the Supreme Court and High Courts has been governed by the Collegium system, wherein judges themselves participate in the selection of new judges.
- In contemporary India, there exists a presumption of judicial neutrality, with judges generally expected to refrain from overt political affiliations.
- However, a controversy arose with the appointment of Lekshmana Chandra Victoria Gowri as an additional judge of the Madras High Court, owing to her prior role as the national general secretary of the BJP women’s wing.
- The Supreme Court asserted that the judiciary should refrain from delving into questions of the suitability of judicial appointments.
Scenarios of different countries:
- United States: A highly Political Judiciary
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- The American system places judicial appointments in the hands of politicians. The President appoints judges to the higher judiciary, and the appointments are confirmed by the United States Senate.
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- However, Canon 5C of the American Bar Association Model Code of Judicial Conduct, 1990 prohibits judges from engaging in political activity except “on behalf of measures to improve the law, the legal system or the administration of justice”.
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- Canon 4 of the 2007 model code provides that a “judge shall not engage in political activity that is inconsistent with the independence, integrity, or impartiality of the judiciary”.
- United Kingdom: Selection on Merit
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- The system relies on senior members of the judiciary and others who are acquainted with the judiciary to choose judges, whose “selection must be on merit”.
- The UK judiciary’s “Guide to Judicial Conduct” states: “Any judicial office holder who is known to hold strong views on topics relevant to a case, by reason of public statements or other expression of opinion, should consider whether it would be appropriate to hear the case irrespective of whether the matter is raised by the parties. The risk will arise if a judicial office holder has taken part publicly in a controversial or political discussion.”
- Judges in the UK are expected to avoid any appearance of political ties, e.g., by attending political gatherings, political fundraising events, contributing to political parties, or speaking at political fora.
- Judges are prohibited from running for Parliament under the House of Commons (Disqualification) Act, 1975.
- Singapore:
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- The Singapore Supreme Court’s Judicial Code of Conduct says “that an independent and competent judiciary must interpret and apply the laws of the country and do justice without any fear or favor, affection or ill-will to the best of its ability.”
- Moreover, the judges should conscientiously ensure that the level of their associations with members of the Legislature and/or the Executive, if any, do not give rise to any doubts about their independence or any unintended appearance that the Judiciary may be beholden to others in any way by such associations.
- Judges should not be members of clubs or associations having “any real or ostensible links with any political party”,
- Australia:
- Australia’s Guide to Judicial Conduct states that giving the appearance of continuing ties by attending political gatherings, political fundraising events, or through contributions to a political party should be avoided.
- Moreover, the code says that if a judge is known to hold strong views on topics relevant to issues in the case because of public statements or other expressions of opinion, the possible disqualification of the judge may have to be addressed, whether or not the matter is raised by the parties.
Ethical concerns related to Judges joining politics:
- Judicial Impartiality:
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- Judges should be neutral and decide cases based only on facts and laws, not personal biases or outside pressures.
- A judge's decision to join a political party after being in controversies may make people doubt if he can be fair in cases involving politics.
- This makes people lose trust in the court's ability to give fair justice.
- Judicial Independence:
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- It's important for judges to be free from outside influence, especially from politics, to keep the law and democracy strong.
- If a judge joins a political party right after leaving the bench, it makes people wonder if politics affected their past decisions.
- This raises doubts about whether the court can work without being influenced by politics.
- Conflict of Interest:
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- Judges must avoid situations where they might have conflicting interests and keep the legal process fair.
- When a judge gets involved in politics after making controversial rulings, it raises concerns about fairness.
- People worry that political involvement might have influenced past decisions.
- Public Trust and Confidence:
- The public needs to trust the courts for them to work effectively in society.
- If judges' actions make people doubt their fairness and honesty, it harms trust in the whole justice system.
- When a judge moves from the bench to politics, people might start to question if the courts can remain independent and fair.
Way forward:
- Improving Judicial Ethics and Standards:
- Making the rules and standards for judges stricter, both while they're serving and after they retire, can help keep the judiciary fair and honest.
- Judges should focus more on earning the public's trust in the court system rather than their own personal interests.
- Increasing Transparency:
- We need to be more open about how we pick retired judges for new jobs after they leave the bench.
- This means telling people how we choose them, letting everyone apply for these jobs equally, and explaining why each person gets picked.
