Should a judge join politics immediately after retirement? Issue of Justice Abhay Thipsay joining Congress

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What will be your reaction if the CBI Director, after his retirement, joins Reliance or some other company which was being subjected to investigation by CBI? In fact, I remember, way back in 1989, when the son of the then CBI Director was alleged to have business dealings with Reliance, it had caused a lot of uproar in the media.

A retired high court judge joining a major national political party, a year after his retirement, causes similar feelings. It is avoidable, at least till a reasonable period after retirement, even if there may be no legal bar.

I may point out that for the Group “A” Government officers, there is a restriction to join any commercial employment (in a private company, etc.) within two years of his retirement without the previous permission of the Government.

The reason for such a restriction is to ensure that such employment should not be by way of quid pro quo for favours shown by such Government officer during his service period. There is thus a cooling-off period of 2 years during which he cannot accept commercial employment without the permission of the Government.

However, as far as I understand, there does not appear to be any such restriction for the judges, though it may appear to be strange. As I had pointed out in an article in 2014 after the then Chief Justice of India P. Sathasivam was appointed as Governor of Kerala, while the Constitution places certain restrictions on a retired judge for practicing law in courts or before other authorities, there is no other restriction imposed in the Constitution on a future employment of a retired judge. Likewise, there does not appear to be any restriction on a retired judge joining a political party.

I may also point out that there have been several instances in the past when retired judges of the Supreme Court or high courts joined politics.

For example, former Chief Justice of India Ranganath Misra (the present Chief Justice of India Dipak Misra is his nephew) had joined Congress party after his retirement and he was a Rajya Sabha member from 1998 to 2004 from Congress party.

Justice K.S. Hegde (father of Justice Santosh Hegde), after resigning from the position of a judge in the Supreme Court, joined Janata Party and won Lok Sabha seat from Bangalore South constituency. He also became Speaker of the Lok Sabha.

Justice Baharul Islam, also a former Supreme Court judge, joined Congress party after retirement.

Justice Vijay Bahuguna, a former judge of the Allahabad high court, joined Congress party and became the Chief Minister of Uttarakhand. Subsequently, he joined BJP.

There are other examples like this. I do not want to multiply such examples.

So, it is not that Justice Abhay Thipsay is the first retired judge who has joined politics. There have been many precedents. However, what is special in his case is that he has decided politically sensitive cases while he was a judge, and also that he joined politics within a short period after his retirement as a judge. This was avoidable. He should perhaps have waited at least for some cooling-off period to avoid raising eyebrows.

I may point out that Justice Thipsay was made the trial judge for the re-trial of the case popularly known as “Best Bakery Case” (during the 2002 Gujarat riots), which was transferred from Gujarat to Maharashtra under the orders of the Supreme Court. In this case, Thipsay convicted certain members of BJP and some other Hindus for killing of some Muslims.

Justice Thipsay has also handled the Sohrabuddin Sheikh encounter case. His observations in this case had attracted wide media attention.

Justice Thipsay had received a lot of criticism when he granted bail to film actor Salman Khan on the same day when he was convicted by the lower court in the hit and run case. There was a public uproar, especially in social media, over his decision.

Recently, after his retirement, Thipsay had raised doubts over the way many high-profile accused in the Sohrabuddin Shaikh encounter case were discharged. Given the fact that BJP President Amit Shah was also one of those discharged from the said case, the above statement of Thipsay showed his political inclinations.

While joining Congress, Justice Thipsay has said that after his retirement, he was disturbed with the growing communalism and aggressive nationalism, and that he was interested in Congress party as a platform to fight them.

Now, one does not know whether he got disturbed about “growing communalism and aggressive nationalism” just after his retirement or he was equally disturbed on these issues when he was a judge and when he decided Best Bakery case and Sohrabuddin case. It is also not clear whether he wanted to fight these issues only after retirement or thought on these lines even during the period when he was a judge.

So, it is true that people may now raise some doubts on some of his judgments in the politically sensitive cases. However, I will still give him the benefit of doubt and will presume that he acted impartially when he was a judge.

At the same time, it would have been advisable if Justice Thipsay had waited for a few years for joining Congress party, for a sort of cooling-off period during which he could perhaps have been a social activist. By immediately joining a political party, which could perhaps have been a beneficiary of his judgments, he has dented his own legacy as a judge. This is despite the fact that in the absence of any legal restriction, he may be well within his rights to join politics. But, law and ethics are not always aligned in the same direction.

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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