Why a Calcutta High Court judge joining BJP has raised questions about judicial independence

On January 25, West Bengal’s advocate general Kishore Dutta made a startling prediction in court: he told Justice Abhijit Gangopadhyay that the judge would soon join the Bharatiya Janata Party and contest the Lok Sabha elections. Gangopadhyay’s time in the High Court was marked by a number of orders against the West Bengal government that politically harmed the Trinamool Congress.

Dutta’s prediction came true on Tuesday as Gangopadhyay resigned from the High Court and announced that he will join the Bharatiya Janata Party. On Sunday, he had declared in a television interview his intention to quit the judiciary and join electoral politics.

He was due to retire from the court in August. His tenure at the bench had commenced in May 2018.

A sitting judge of a constitutional court demitting their office to join politics is unusual, although not unprecedented. However, the manner in which Gangopadhyay has done so, announcing his intention to join politics whilst being a sitting judge, raised concerns about the independence of the judiciary, according to legal experts.

Courting controversy

Over the last few years, Gangopadhyay has garnered notoriety due to his outspokenness and alleged disregard for the norms relating to the public conduct of judges.

In an order in January, he had levelled allegations of political bias and corruption against another judge of the High Court, Soumen Sen, accusing him of, among other things, attempting to influence another judge of the court to not pass any adversarial orders against Abhishek Banerjee, the general secretary of the Trinamool Congress.

The Supreme Court had to intervene two days later, staying all proceedings in the case before Gangopadhyay and transferring them to itself.

During the hearing on January 25, he had a heated altercation with Dutta. Following this, some lawyers of the High Court had written to the court’s Chief Justice about Gangopadhyay’s “extremely uncharitable, demeaning, and defamatory comments about the Advocate General” and demanded an apology from Gangopadhyay.

About two weeks later, Gangopadhyay apologised for his comments to Dutta in open court.

Last year, in another interview to a Bengali news channel, he had criticised Banerjee, even as he was hearing a case in which the Trinamool Congress leader had been accused.

A judge talking the to the media and taking positions on a case he was hearing came in for criticism at the time. The Supreme Court had taken cognisance of this, asking the Calcutta High Court chief justice to reassign the matter to another judge, noting that judges should not give media interviews related to pending matters.

In retaliation, Gangopadhyay had ordered the Supreme Court’s secretary general to hand over the transcript of his interview that had been made available to the Supreme Court. The Supreme Court stayed this order.

Earlier this year, Banerjee had moved the Supreme Court to request a gag order on Gangopadhyay and the removal of cases relating to him from Gangopadhyay.

In December, Gangopadhyay had directed the immediate arrest of a lawyer in his court for contempt. In response, the Calcutta High Court Bar Association had called for a withdrawal of all judicial work from his court. The logjam was resolved after Gangopadhyay visited the association chambers and persuaded its members to call off their strike.

In 2022, Gangopadhyay had directed journalists to make video-recordings of the proceedings related to a case in his court, leading to an acrimonious exchange with lawyers, who objected on the grounds that doing so would turn the court into a “bazaar”. The recording of court proceedings is banned as per the Supreme Court’s rules on video conferencing.

Questions over judicial independence

Gangopadhyay won’t be the first judge of a constitutional court to move on from the judiciary to party politics.

However, his manner of transitioning from the judiciary to politics – publicly announcing his decision before having resigned from the bench and crediting the Trinamool Congress for his decision – combined with his regular diatribes against the ruling party in Bengal while he was a judge have raised questions about judicial impartiality. Gangopadhyay has claimed that he was in touch with the BJP when he was a judge.

“It would be foolish to believe that a judge who has now joined a political party in favour of which he, directly or indirectly, passed orders, was unbiased and impartial while he was on the bench till just a few days ago,” said lawyer, legal scholar and author Saif Mahmood, who practices at the Supreme Court.

Former Supreme Court judge Markandey Katju told Scroll that this was “most improper” of Gangopadhyay. “A sitting judge should not have said that he will contest elections,” he said. “His statements create the impression of prejudice against the Trinamool Congress.”

Mahmood agreed. “The credibility of the judiciary hinges on public perception of fairness and impartiality,” he said. “Post-retirement affiliation with a political party creates a strong perception of bias regardless of the judge’s actual intentions, thereby directly and patently tearing into this perception.”

Katju stressed that judges must not only be neutral and unbiased, but appear to be so too. “This is reminiscent of many other judges in recent past who had a political slant and were given government appointments post retirement,” he said. “It gives the impression that the judiciary is not independent.”

Aspersions will now be cast on Gangopadhyay’s verdicts, according to him.

However, Kolkata-based advocate and joint editor of the Calcutta Law Journal, Imtiaz Akhtar, did not agree. “Gangopadhyay’s orders should be judged in light of facts and circumstances of each case,” he said. “As a judge, I can say this that he has been outstanding. His orders were based on law and facts and not on inclination of any political party.”

Akhtar emphasises that judges are a product of our society. “The judiciary is independent but individual judges may succumb to temptations,” he said.

Should judges be barred from electoral politics?

Katju advocated for a cooling off period between a judge demitting their judicial office and entering politics or accepting any other government appointment. “A judge is like a referee in a game. They cannot join it,” he said. “They must only see to it that it is conducted fairly.”

According to Mahmood, “the obligation of judges to uphold the Constitution and independence of judiciary is a life-long obligation”. This is why he backed a complete bar on judges of High Courts and the Supreme Court contesting elections.

“Post-retirement political affiliation, especially with a party that was favourably affected by that judge’s decisions, blatantly impinges on the independence of judiciary by creating a perception of bias,” he said.

On the other hand, Akhtar said that judges should not be barred from contesting elections. “Inclusion of good judges in legislative bodies can and would enhance the law making process,” he said.