Has political background been a bar to becoming a judge? It depends on the politics

The appointment of Justice Lekshmana Chandra Victoria Gowri, a lawyer who was the National General Secretary of the Bharatiya Janata Party women’s wing and had made disparaging remarks about religious minorities, on February 7, has kicked off a debate about whether candidates with political background should be appointed to the bench.

While hearing the case challenging Gowri’s appointment, the Supreme Court said that there have several instances where people with political backgrounds have been elevated to the judiciary. Though the petitioners challenging her appointment clarified that the problem was not her political affiliation but rather her comments that allegedly amounted to hate speech, the court refused to intervene in the case.

There have been several previous instances where lawyers who were members or office bearers of political parties or closely associated with them have been appointed as High Court and Supreme Court judges. On the other hand, there have also been instances where lawyers were not elevated because their political leanings did not find favour with the government of the day.

Judges with political backgrounds

While several people believe that most judges are apolitical, George H Gadbois Jr writes in his seminal book Judges of the Supreme Court of India: 1950-89, “Participation in politics prior to High Court or SCI [Supreme Court of India] appointment was more common than most realize.” Godbois was an expert on the Indian Supreme Court and wrote one of the most comprehensive accounts of Supreme Court judges.

According to Gadbois, who covers the lives of 93 judges in his book, “more than a quarter of [Supreme Court] judges had engaged in political activities before their High Court appointments”.

He writes that almost all politically active appointees were appointed after 1970. By this time, barring a few exceptions such as Justice Krishna Iyer, “their earlier participation in political activities had long been buried and forgotten”.

Iyer, one of the most common names used to elucidate on judges having political histories, was elected as an independent member of the Kerala Legislative Assembly in 1952 and 1957 and was eventually given several portfolios in the EMS Namboodiripad Communist Party of India government in Kerala in 1957. In 1968, he was elevated to the Kerala High Court and in 1973 to the Supreme Court.

The most common political background, Gadbois writes, was participation in the freedom struggle. However, some judges also held elected office.

For instance, Justice KS Hegde joined the Indian National Congress in 1935 and was elected to the Rajya Sabha as the party’s nominee in 1952. He resigned from the house when he became a judge of the Mysore High Court in 1957.

Some judges also contested elections but lost. For instance, Justice GL Oza, a former Supreme Court judge, contested the election for the Madhya Pradesh Legislative Assembly in 1952 as a Socialist Party candidate but lost. Other judges, such as Justice KN Singh, an active member of the Congress for more than a decade, were long-time party workers before their elevations.

There are several examples of judges also belonging to political families, being elevated. One of the judges hearing Gowri’s appointment, Justice BR Gavai, said that he also “has a political background” and that his background has never come in the way of him being a judge. BR Gavai’s father, RS Gavai, was the founder of the Republican Party of India (Gavai) and his brother Rajendra Gavai is the current president of the party.

In some cases, however, the political affiliations of candidates have created hurdles before their final elevation to judgeship. For instance, former Madras High Court judge K Chandru said that when Madras High Court judge Justice V M Velumani’s name was recommended, the Intelligence Bureau said that she was an office bearer of the AIADMK and this information was shared with the collegium, which then sought comments. “Immediately, J Jayalalithaa as general secretary of the party gave a statement in her party newspaper that Velumani had already resigned from her post,” he said, adding that after the resignation her name was cleared.

Judges are political

Several legal commentators believe that even now it is common for judges to be part of political parties.

“Judges have been part of political parties for a long time,” said former Allahabad High Court Chief Justice Govind Mathur. “If you are a part of any political party or ideology, that is not an issue. The point is that your credentials should not go against any constitutional values and after becoming a judge you should follow the law and not your own philosophy.”

Mathur said that lawyers have often been involved in politics and lots of lawyers who were part of political parties or had strong political philosophies became successful judges. “I was also very active in politics up to 1983 and remained a member of a political party up to 1989.”

He continued, “When my name was recommended for Rajasthan High Court judgeship in 2003, I declared my political affiliations.” Mathur pointed out that at that time a Bharatiya Janata Party-led government was at the Centre and a Congress government was in the state, but none of the governments objected to his appointment. “After some time the government changed, Bharatiya Janata Party came to power in Rajasthan and Congress at the Centre, which required my name to be assessed. This also did not create a hurdle.”

He also gave the example of Guman Mal Lodha, who was the president of the Rajasthan unit of Jan Sangh from 1969 to 1971 and a member of the Rajasthan Legislative Assembly from 1977 after which he was elevated to Rajasthan High Court judgeship.

Added Alok Prasanna Kumar, senior resident fellow at think tank Vidhi Centre for Legal Policy, “A lot of judges who end up in High Courts have been advocate generals or additional advocate generals for lots of governments.”

These are political appointments, he said. “Parties often want people in these posts who share their political beliefs. So that way you will find lots of lawyers close to politicians becoming judges.”

He said that judges having political opinions was okay, as long as there is a diversity of opinion on the bench.“The only thing which should not happen, which is happening now is that the government is saying that anyone who does not share our ideology should not be appointed,” Prasanna Kumar argued.

Judges not appointed

Since the entire appointment process is opaque, it is often not known if potential candidates were not elevated because of their political backgrounds or ideology. However, there are a few known instances of political affiliations creating hurdles in elevation.

In his book Supreme Whispers: Conversations with Judges of the Supreme Court, lawyer Abhinav Chandrachud writes about MN Chandurkar, a judge having served at the High Courts in Madras and Bombay, who was recommended for elevation to the Supreme Court twice, in 1982 and 1985. However, the Union government of the day, led by Indira Gandhi, returned his name on grounds that he had attended the funeral of Rashtriya Swayamsewak Sangh leader MS Golwakar and “had said nice things about Golwalkar in his eulogy”.

Chandurkar’s father was a friend of Golwalkar, Chandrachud writes, and Gandhi believed that Chandurkar would “not likely to be helpful” to her government.

According to former Madras High Court judge Chandru, the political views and backgrounds of some judges have created obstacles in their elevation to the Madras High Court.

Senior advocate KM Vijayan was recommended for elevation by the Madras High Court collegium, he says. “Political groups raised objections that he was anti-social justice as he was opposed to 69% reservation [in Tamil Nadu],” he added. “The Supreme Court collegium rejected his name.”

Chandru said that the “undisclosed reason was that…he filed a public interest litigation [challenging the reservation] and appeared as a party in person [and not as a lawyer]” and that “such strong views may later show bias in future decisions”.

Two Supreme Court collegium resolutions from January also show that the Union government has not cleared the elevation of two advocates for their political views.

Somasekhar Sundaresan’s, an advocate at the Bombay High Court, name has been reiterated twice but the Centre returned his name since he was a “highly biased opinionated person” who was “selectively critical on the social media on the important policies, initiatives and directions on the government”.

Further, another Madras High Court advocate, R John Sathyan’s name has been flagged by the Intelligence Bureau since he shared on social media a report from The Quint that criticised Prime Minister Narendra Modi.