New Delhi: Shortly after he submitted his resignation letter as a Calcutta high court judge, Abhijit Gangopadhyay, addressed a press conference in which he declared that he will be joining the Bharatiya Janata Party (BJP) but also crucially said that the saffron party had been in touch with him, while he was also in touch with them.
“I was on leave for the past seven days so that no adjudication comes to me (sic). I have not done any adjudication in the last seven days. Both sides approached each other. I approached the BJP and the BJP also approached me,” he said at the press conference on March 5.
Two days prior to the press conference, Gangopadhyay had announced that he will be resigning from his post to join active politics.
Gangopadhyay, who was due to retire in August 2024, is not the first judge in India to take early retirement to take the political plunge.
But it is this statement, in which Gangopadhyay says that he was in touch with the BJP and the BJP was in touch with him, implying that as a sitting judge he was in touch with a political party, that has once again raised questions of judicial propriety, independence, and whether there should be a cooling off period for judges before they enter electoral politics.
Gangopadhyay had presided over key judgments that criticised the Trinamool Congress (TMC) government in the state.
Since 2022, he was being called as the “people’s judge” having posited himself as a unique crusader against corruption claims made against the Mamata Banerjee government. He delivered crucial verdicts that have helped uncover scams like the Bengal school recruitment scam.
Imtiaz Akhtar, an advocate in the Calcutta high court and joint editor of Calcutta Law Journal, told The Wire that Gangopadhyay’s pronouncement that he was in touch with the BJP is “nothing but quid pro quo.”
“As a sitting judge, you take an oath under the constitution, and by doing all this (being in touch with the BJP), you are doing nothing but quid pro quo. You are saying that you have been in touch with the political masters. Now whatever the judgments say, regardless of merit, people will say this was done due to under-the-table dealing. This will badly hurt the image of the high court which is very unfortunate,” he said.
Sanjoy Ghose, senior advocate in the Supreme Court, said that Gangopadhyay’s statement shows “absolute lack of judicial propriety.”
“It shows an absolute lack of judicial propriety. Because as long as he is wearing judicial robes, as long as he is holding a constitutional office which requires absolute independence, justice, as they say, should not only be done but be seen to be done. It is actually a really sad day for the justice system that a sitting judge would say that he has contacted a political party,” he told The Wire.
Akhtar said that while aspersions will be cast on his orders now, on points of law they cannot be touched.
“Legally speaking, if you cast this politics aside, I think his orders are untouchable. Even if you go for a review or bring another judge, on points of law it is almost perfect. I think he has acted in great haste and done great harm to the institutional integrity and reputation of the high court.”
Not new to controversies
This is not the first time that Gangopadhyay has been the centre of a political debate.
He was appointed as the additional judge of the Calcutta high court on May 2, 2018, and started functioning as a permanent judge of the high court on July 30, 2020.
In January, a five-judge bench of the Supreme Court at a special Saturday sitting stayed proceedings at the Calcutta high court in a case where a single-judge bench of Gangopadhyay had defied a stay order passed by a division bench of Justices Soumen Sen and Uday Kumar.
Gangopadhyay’s single judge bench had called for a CBI (Central Bureau of Investigation) probe into medical college admission irregularities in Bengal, which was stayed by the division bench, which was subsequently ignored by the now BJP leader.
This was not the first intervention by the Supreme Court in matters related to Gangopadhyay.
Last year in April, Chief Justice of India D.Y Chandrachud said that “judges have no business granting interviews on matters which are pending” in connection with an interview given by Gangopadhyay to a Bengali news channel in September 2022.
TMC MP and chief minister Mamata Banerjee’s nephew Abhishek Banerjee, who is seen as the second in command in the party, had moved the Supreme Court and alleged that Gangopadhyay had shown his “dislike” for him in the interview.
The matter came up before the apex court in response to Banerjee’s petition challenging the high court order against him, which had ordered an investigation by the CBI and Enforcement Directorate (ED) in connection with the alleged Bengal school jobs scam. The apex court had already stayed the high court against Banerjee earlier.
The apex court then transferred the case from Gangopadhyay.
But in an unusual move, Gangopadhyay in a suo moto order asked the Supreme Court’s Secretary General to provide him with the translation of his controversial media interview that was placed before the Supreme Court bench. This led the Supreme Court to hold a special sitting to stay Gangopadhyay’s direction.
Former Supreme Court judge Madan B. Lokur said that while it is not possible to generalise on the quality of his orders given his current political turn, it is the apex court’s intervention in many of his cases “that speak for itself.”
“It is possible that some orders may be motivated. It is equally possible that they were not motivated. It is not possible to generalise, nor is it possible to come to an absolute conclusion. But let’s be clear, a trained legal mind can discern if an order is motivated or not. The fact that some cases were withdrawn from him by the Supreme Court speaks for itself,” he told The Wire.
Not the first judge to move to politics
Gangopadhyay is not the first judge to move into politics, or even take early retirement to take the political plunge.
Among others, Justice V.R. Krishna Iyer, who had been MLA in both Madras and Kerala (after the reorganisation of states), was appointed to the Kerala high court in 1968 and later became a Supreme Court judge in 1973.
Justice Koka Subba Rao resigned as the Chief Justice of India in 1967 after accepting the opposition’s invitation to contest the presidential elections.
Former Supreme Court Justice Baharul Islam also resigned before his retirement to contest the Lok Sabha elections from Barapeta, Assam, in 1983, and was subsequently sent to the Rajya Sabha. He had earlier also been a Rajya Sabha MP before being appointed as a judge in the Guwahati high court.
Justice Guman Mal Lodha had been the president of the Rajasthan unit of the Jana Sangh before being appointed as judge to the Rajasthan high court and later even contested the Lok Sabha elections.
Justice K.S. Hegde, who had been a Rajya Sabha MP on a Congress ticket, and later resigned from the post to become a judge in the Mysore high court, and subsequently of the Supreme Court, after which he again contested elections and even became the Lok Sabha speaker in 1977.
More recently Justice Ranjan Gogoi also became a Rajya Sabha MP close on the heels of his retirement.
No constitutional bar on judges joining politics
Ghose said that while history has shown that there have been various judges who have joined politics or left politics to become judges, Gangopadhyay has a distinction of his own.
“There have been various examples throughout history of judges joining politics but a sitting judge has never said I am in contact with a political party and I am joining politics tomorrow or in two days,” he said.
Faizan Mustafa, vice chancellor of the Chanakya National Law University (CNLU) in Patna, cited the long list of judges who have taken the political plunge and said that while Gangopadhyay’s move has not violated any law, the independence of the judiciary is at stake.
“There is no cooling off period for judges at all. If people retire and they are nominated by the government then ideally there should be some cooling off period but as of now there is no rule. Anybody is free to contest elections, any citizen can do so. One should be more bothered about what they do as judges- were they committed to some ideology or some government? Because their performance as judges needs to be examined critically.
According to Lokur, while judges may have political views, they need to be kept aside.
“There is no constitutional bar for a judge to declare that he will resign and join politics or a political party. Judges are members of society and humans. They may have political views, but it is best to keep them aside while deciding a case, otherwise an unjust or unfair decision will be rendered. If this happens, it impacts the independence of the judiciary,” he said.
Mustafa said that while Gangopadhyay’s judgments may not have been motivated by his future political affiliations, they are now open to doubts.
“Judges live in our society and many of them talk to political parties also but ideally, when you are on the bench, you should be politically, ideologically, and religiously neutral. Because people ultimately need to have confidence in your judgment. Ultimately, independence of the judiciary is the right of the people rather than the right of judges, so the opinion of people matters. By making such statements he is creating doubts in the minds of the people about his orders,” he said.
