Editorial: An ugly courtship

In the 75th year of our Constitution, nothing is more worrisome than the fatal attraction between the higher judiciary and the party in power. What used to be sporadic instances of judges flirting with ruling party interests in the hope of winning post-retirement sinecures has now grown into a full-fledged phenomenon that threatens to break down the bastion of judicial independence and impartiality.

The case of Justice Shekhar Kumar Yadav of the Allahabad High Court making brazen majoritarian remarks at an event organised by the Vishwa Hindu Parishad (VHP) signifies the shedding of the final fig leaf in this illicit romance. The speech violated everything that a judge in India is sworn to uphold. He was addressing a conference organised by an organisation that is a litigant in contentious temple-mosque disputes in UP. The meeting was held in the library of the High Court. The judge used a pejorative word to refer to Muslims and described them as a community given to violence. He said the wishes of Hindus must but naturally prevail in India because “the law works according to the majority.”

From the lower courts to the highest echelons of the judiciary, there is an unmistakable pattern of judges making statements or taking actions that align with the ruling party's ideology as they approach retirement. This behaviour often stems from a desire for post-tenurial courtesies, which can include appointments to commissions, tribunals, or even political roles. Such actions not only compromise the perceived impartiality of judges but also raise ethical questions about their motivations during tenure.

The nomination of former Chief Justice Ranjan Gogoi to the Rajya Sabha four months after retiring from the Supreme Court is only the most controversial such instance. His brother judge on the bench that delivered the Ram Janmabhoomi-Babri Masjid verdict in favour of the majority community, Justice S Abdul Nazeer, was appointed the governor of Andhra Pradesh just a month after retiring from the Supreme Court. Another judge on that bench, Justice Ashok Bhushan, was appointed to head the National Company Law Appellate Tribunal shortly after retirement.

Arguably, the practice of rewarding retired judges with political or governmental positions is not new. But it has become more pronounced and pernicious in recent years. We did have the case of Justice Koka Subba Rao who, in 1967, resigned three months before his retirement and was fielded as the opposition candidate in the presidential election. Then there was the famous case of Justice Baharul Islam who was a Congress MP in the Rajya Sabha when he resigned and was made a judge of the then Assam and Nagaland High Court in 1972. He went on to become a Supreme Court judge, which post he resigned in 1983 to contest a Lok Sabha election as a Congress party candidate.

What makes the current trend alarming is the brazenness of the judges in advertising their fidelity to the ruling party while in office, through their obiter dicta, official rulings and public speeches. Complementing this tendency, ruling party politicians stand ready to normalise such open partisan behaviour. Justice Shekhar Yadav’s unconstitutional remarks on Muslims have been defended by UP chief minister Yogi Adityanath, who said they are “the truth”. Ignoring the fact that the judge’s views are a betrayal of the Constitution, the CM said, “Across the world the feelings of the majority community are honoured at any cost. If someone utters that truth, then what crime has he committed?” This in the 75th year of the Constitution.