Should judges join politics? Abhay Thipsay’s decision to join Congress revives the debate

Legal scholars and commentators often say that “judges are politicians in robes” because they decide cases, especially hot-button ones which have political overtones, not only according to the law, but also according to their personal beliefs and ideologies. However, a more vexing issue arises when one asks if it is right for judges to join active politics after retirement, or by resigning from judicial office. Does venturing into politics cast a cloud of doubt on the impartiality of the judge in politically sensitive cases? Does this act violate the tenets of judicial ethics and harm the institution of the judiciary as a whole?

These questions are being asked days after Justice Abhay Thipsay, who retired as a high court judge in 2017, announced his decision to join the Congress party on June 12.

If Thipsay had been a nondescript judge who did not decide any high profile cases, it would not have mattered much. But during his tenure, he ruled in the Sohrabuddin Sheikh encounter case, the Best Bakery massacre case and the Kabir Kala Manch activists’ case, among others. These cases involved matters where either the Bharatiya Janata Party or its supporters were involved, or the state was challenged for violating the democratic and fundamental rights of citizens. In the Best Bakery case, he convicted members of the BJP and various Hindutva groups for participating in the massacre of Muslims during the 2002 Gujarat riots. In the Sohrabuddin Sheikh case, he granted bail to Gujarat police officers DG Vanzara and Narendra Amin while writing in his judgement that he was doing so only because he was bound by Supreme Court rulings and not because he believed in their innocence, and in the Kabir Kala Manch case he acquitted members of a group – comprising Dalit and working class musicians and poets – of charges of Naxalism.

Thipsay’s announcement that he is joining the Congress because he wants to stand up against rising intolerance and rampant violations of the rule of law under the present political regime therefore raises the question: Was Thipsay, in his significant judgements, driven by a particular political ideology, and not the principles of law?

Former judges and legal experts have no unanimous opinion on this issue.

Judges in politics

This is not the first time that a judge has thrown their hat into the political ring, because there is no legal bar on a judge’s doing so after demitting office. Several judges, both in India and abroad, have joined politics after retiring or resigning from office. In India, they include Justice Baharul Islam, former Chief Justice of India Ranganath Misra (the uncle of Chief Justice of India Dipak Misra), Justice KS Hegde, Justice Vijay Bahuguna, who became the chief minister of Uttarakhand; M Rama Jois, a member of the Rashtriya Swayamsevak Sangh who joined the BJP after retiring as Chief Justice of the Karnataka High Court, and former Chief Justice of India P Sathasivam.

Justice Islam, who along with Justice Ranganath Misra ruled in favour of Bihar’s Congress Chief Minister Jagannath Mishra in the controversial Sheonandan Paswan case in 1982, resigned to join the Congress party, while Justice Ranganath Misra joined the Congress after retiring as Chief Justice of India in 1991. Both were criticised for favouring the party while in office. Justice Hegde of the Supreme Court, who ruled against the Congress in many cases during the Emergency, joined the Janata Party and later went on to become the Lok Sabha Speaker. Justice Sathasivam, who granted bail to BJP president Amit Shah in the Sohrabuddin Sheikh case, courted controversy upon retirement because he accepted the post of Kerala governor after Narendra Modi came to power in 2014.

In the US, a judgment of a court of appeals allows judges to join politics, and there are instances of former politicians becoming Supreme Court justices. In India too, Justice VR Krishna Iyer went on to become a Supreme Court judge after being a minister in Kerala’s Communist Party government.

Former judges speak

There is a widely held view that co-mingling of judges and politics harms the public perception of the judiciary as an institution that is supposed to be independent and nonpartisan. The argument is that the more former judges trade on their judge status, the more difficult it becomes for members of the public to distinguish between active and retired judges. Politically active former judges thus make it harder for current judges to do their job.

However, former high court judges agreed that there was nothing wrong or unethical in Thipsay’s decision.

Justice PB Sawant, who retired as a Supreme Court judge and has actively espoused many civil liberties and democratic rights causes since, spoke highly of Thipsay’s career on the bench. He said that every judge rules according to their own judicial outlook and social and political beliefs and so long as a judge rules with an independent mind, sans any blandishments, it would be grossly unjust to impute political motives to certain rulings.

Another retired judge, BG Kolse Patil, spoke highly of Justice Thipsay. “I have known Justice Thipsay both as a judge and a human being and can vouchsafe for the fact that he has never strayed from the path of judicial integrity while on the bench,” he said. “He has only exercised his democratic and fundamental right by answering his conscience and joining the political party of his choice, and in present times, if we former judges do not protest against what is going on in the country, we would be abdicating our responsibility.”

Like Justice Sawant, Justice Patil actively participates in various socio-political causes and protests, the most recent among which was organising the Elgar Parishad of Dalit rights activists in Pune on the 200th anniversary of the Bhima-Koregaon battle, on December 31.

While retired judge AP Shah, who never hesitates to speak his mind on controversial political topics, refused to comment because Justice Thipsay is a personal friend, Justice K Sreedhar Rao, who retired as acting Chief Justice of the Guwahati High Court, was more forthcoming in his views. He said that he has closely followed Justice Thipsay’s judicial career, and always found him to be fiercely independent and a firm believer and upholder of constitutional values.

Rao also drew a sharp distinction between those judges who join politics, and those who take up government positions immediately after retirement. He said that the rulings judges make shortly before their retirement or resignation could raise questions of alleged or perceived bias only if they take up government positions immediately after retirement.

What legal experts say

Legal experts did not agree with the views of the retired judges.

Senior lawyer Kamini Jaiswal, also the Secretary of the Committee for Judicial Accountability and Reforms, said that although there is no legal bar on judges joining politics after demitting office, if one has held a constitutional position – that of a High Court or a Supreme Court judge who has to often decide cases where governments and political parties are litigants – joining politics justifiably casts doubts on many of their rulings. She said that Justice Thipsay ought not to have joined a political party and added that he was free to speak out against injustice even without doing so.

Senior Advocate Rebecca John agreed with Jaiswal. “Propriety demands that judges stay away from membership of political parties,” said John. “Especially since it gives rise to the suspicion (even if not true) that their rulings while in service were coloured by their political leanings.”

Lawyer and commentator Alok Prasanna Kumar had a different view. He said that there was no problem with an individual judge joining politics post their term. Neither was there a problem if a politician – if qualified and suitable – was appointed as a judge. “The task of adjudication, especially constitutional adjudication, is political,” said Kumar. “It is not necessarily partisan. As long as a judge has shown independence on the bench, there is no reason to doubt his integrity.”

But Kumar was critical of Sathasivam and Subba Rao – both former Chief Justices of India – who accepted political posts after their tenure. “A CJI stands on a different footing,” he said. “The office is vested with more powers than a regular judge and is required to be held to higher standards.”

Senior Advocate Sanjay Hegde, while agreeing with Kumar, posed a question. Citing the examples of William Howard Taft, the 27th President of the United States, and Earl Warren, a Republican Governor, he asked: If they could serve on the Supreme Court bench without being accused of delivering politically-coloured judgements, why can’t Justice Thipsay follow his political persuasions?