Author: Aastha Mishra, Lloyd Law College, Greater Noida
Abstract
This article aims at expressing the debatable position of propriety about independent constitutional principles. It majorly highlights the origin of the concept of separation of power and the consequences thereof relating to the higher authorities and other officials joining political parties soon after abdicating their offices. Concerning the queries like , What are the restrictions on judges and senior government officials with respect to their employment when it comes to other posts within the government or in the private sphere? Can a former judge join a political party and contest elections?
“The accumulation of all powers, legislative, executive and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self appointed or elective, may justly be pronounced the very definition of tyranny.”
Some time ago, our nation state faced an incident where judges and bureaucrats entered the world of politics after demitting their offices. This scenario took place in the state of West Bengal, where a Calcutta High Court Judge and an IPS officer resigned their posts and joined political parties. Concerns have been articulated regarding the potential compromise of judicial integrity and the principle of separation of powers, arising from a retired judge’s expressed commitment to partisan politics; this necessitates an analysis of the jurisprudential justifications for restrictions on judicial participation in political spheres.
How far is it viable when law interpretators become law makers?
India being a federal state holds with it the underlying idea of Doctrine of Separation of Powers which basically means that different organs of government will have powers at their own status with a cooperative and advisory essence which will not collide or overlap.
If we go through the origin of this doctrine than the idea was initially propounded in the very famous work of Montesquieu, “The Spirit Of Laws (1748)” , giving the core idea that by fractioning governmental authority among level of bodies will lead to prevention of tyranny and safeguards liberty.
The rule of law, which is the root of a just and harmonious society, requires that everyone, irrespective of their power and position, be subject to and obey the law. The judiciary, as the custos morum of the rule of law, is vested with the interpretive and applicative function of legal norms, ensuring aequitas and impartiality. The transposition of judicial officers into the political sphere creates a risk of conflating the jus dicere function with the jus facere function, thereby undermining the integrity of the rule of law.
Furthermore, the doctrine of séparation des pouvoirs, a fundamental tenet of democratic governance, is potentially compromised by such transitions, leading to a perceived or actual diminution of judicial neutralitas.Upon examining the constitutional perspective, there are no explicit implications indicating that the Constituent Assembly had endorsed a bar on judges or other government officials assuming executive roles after demitting their office for a period of 10 years. However, recent events have compelled a re-evaluation of safeguards regarding judicial integrity. Although the Constitution of India has not explicitly recognized the doctrine of separation of powers in an absolute sense, it can be very well said that the Constitution does not contemplate the assumption by one organ of the government of functions that essentially belong to another, as observed by the Hon’ble Supreme Court in Ram Jawaya Kapur v. State of Punjab, 1955.
Expressing concerns regarding the perception of the judiciary, former CJI Justice D.Y. Chandrachud said, “Justice must not only be done but must also be seen to be done. If a judge retires today and joins a political party tomorrow, it could raise questions among the public.”Ethically, the incident is not a new one. In 1967, Chief Justice Koka Subba Rao and Justice Baharul Islam, both formerly of the Supreme Court of India, resigned from their judicial appointments in advance of their respective retirement dates. These resignations were tendered to facilitate their candidacies in the presidential and Lok Sabha elections, respectively.Profoundly, the concern is not about retirement or demission, but rather the roles assumed subsequently, which become the matter of impugned question. This is due to the fact that judges are mandated to maintain neutrality and strict impartiality, grounding their actions exclusively in legal principles, free from any personal prejudices or undue influence.The Indian Constitution employs a system of checks and balances to ensure that no single branch of government becomes overly powerful. The executive branch is answerable to the legislature, while the judiciary acts as a safeguard for both.
Furthermore, independent bodies like the Election Commission, Public Service Commission, and the Comptroller and Auditor General operate without government interference, maintaining their autonomy through guaranteed terms, financial independence, strict removal procedures, and post-retirement restrictions.For instance, Supreme Court judges, upon retirement, are barred from practicing law in any Indian court. High Court judges face similar restrictions, though they retain the ability to appear before the Supreme Court and other High Courts.Stepping upon the same, the Apex Court adopted the Restatement of Values of Judicial Life in 1997, outlining ethical standards and principles for judges, comprising values meant to bind public faith and firmness in the system. The sensitive circle of the theme is that things are under public gaze, which may, at times, be scrutinized.
On applying the demarcations about the impacts of such post-retirement appointments, the issues that can be gathered are: firstly, such practices obscure the objectives which the judiciary and executive tend to serve, opening the doors to conflict of interest and resulting in the loss of public trust and confidence. A judge’s shift from the bench to active politics can foster public skepticism and distrust regarding the judiciary’s independence and ethical standards. When a judge enters the political arena, it can lead to public cynicism about the judiciary’s ability to remain impartial and unbiased. Delivering rulings while on the bench and then soon joining politics gives rise to conflicts, controversies, and harm to judicial integrity.In driving an insight towards the suggestions to combat this conflict, there have been recommendations for the implementation of a cooling-off period post-retirement or resignation from office to mitigate potential conflicts of interest. While the time period has not been specifically defined, former CJI R.M. Lodha once recommended it to be at least two years. He believed that officers who demit their sensitive positions or hold designations that bind public faith should refrain from accepting any other appointment for some time—on average, around two years.While the grundnorm, that is, our Constitution, explicitly does not restrict judges from taking up post-retirement assignments, the idea behind cooling-off periods is that a sufficient time break prevents a direct link of influence from a previous job to a new appointment. Indirectly, it would also serve another purpose—ensuring financial security for judges without compromising independence, as was recommended by the 14th Law Commission Report, 1958.At a glance towards the international framework, comparatively, in the USA, Supreme Court justices do not retire; rather, they have the privilege to hold their positions for life to prevent any encumbrances. Even so, in its history, no judge has engaged in such a practice.Articles 195 and 219 provide for judges to take an oath affirming to perform their duties without prejudice, fear, or favour, specifically stressing independence, impartiality, and integrity. Their engagement in politics without due precautions can lead to a compromise of public trust in the judiciary.
Conclusion
Vehemently such practices create substantial ethical concerns regarding the principle of separation of powers, as they directly affect the morals of honesty and reputation—emphasizing how crucial it is to uphold judicial and executive standards, respectively. It is the officials who give life to institutions or organs like the judiciary and executive; therefore, it automatically compels these members to realize that the face of such professional standards relies upon them, and they must build the pillars of trust and confidence.
Thus, maintaining a clear distinction between judicial duties and political actions becomes necessary in the context of performing primary roles. If the time requires, then there should be clear guidelines to direct post-retirement assignments and roles. When judges move directly into politics after their service, it highlights the delicate tension between maintaining judicial independence and the crucial need to prevent conflicts of interest.This situation underscores the importance of strong rules to prevent judges from using their former authority for political advantage. This is essential for protecting the judiciary’s integrity and the rule of law. Although having former judges in politics might seem beneficial, the potential dangers to democratic principles mean we must prioritize the rule of law, the separation of powers, and the respectability of the judiciary over individual rights. Barring judges from entering politics in India is a vital measure to protect the judiciary’s integrity and effectiveness, ensuring it remains the foundation of justice in the country.
FAQS
What is the concept of separation of powers?
Ans. The separation of powers is a fundamental principle of government that divides governmental authority into three distinct branches: legislative, executive, and judicial, each with its own specific functions, to prevent the concentration of power and ensure a system of checks and balances.
How far is it applicable in India?
Ans. While the Indian Constitution doesn’t explicitly enforce a strict separation, it provides for a balanced distribution of power with checks and balances.( Refer Art.50).
Are there any defined measures to combat such situations?
Ans. To combat situations that infringe on the separation of powers, mechanisms like judicial review, checks and balances, and independent institutions are crucial. These measures ensure no single branch becomes too powerful and that all branches remain accountable.
What can be its implications in upcoming future?
Ans. Future implications of a weakened separation of powers include increased risk of tyranny, corruption, and erosion of democratic principles.
Sources
https://www.thehindu.com/news/national/on-judges-and-bureaucrats-joining-politics-explained/article67948185.ece
https://legislative.gov.in/constitution-of-india/
https://lawcommissionofindia.nic.in/report_fourteenth/
