Judges in politics: India
This is a collection of articles archived for the excellence of their content.
Judges who became politicians
How judges fared in politics
In the first part last week, we discussed how former CJIs M C Mahajan, K Subba Rao and M Hidayatullah as well as SC judge K S Hegde took the plunge into politics. In the concluding part, we will begin with Justice Hans Raj Khanna.
Khanna, who tilted the balance in a 7-6 majority that coined ‘inviolability of basic structure of Constitution’ in the Keshavananda Bharti judgment [1973 (4) SCC 225], became a beacon of judicial independence when he refused to bend before the Indira Gandhi government’s dictatorial reign during the Emergency.
He penned the lone dissent in ADM Jabalpur case [1976 (2) SCC 521] and paid the price for it. He was superseded. The government appointed M H Beg as the CJI. Like a true judicial warrior, he resigned in 1977, months before the Congress government fell.
For two years, he spurned offers to head commissions of inquiry into excesses during Indira Gandhi’s regime, including probe into Maruti affairs, which was later headed by former CJI J C Shah. He surprised many by accepting PM Chaudhary Charan Singh’s offer to become law minister in 1979. But politics and governance proved too much for Khanna and he resigned after three days.
Three years later, he accepted the request of opposition parties to contest against Congress candidate Giani Zail Singh for the post of President. Khanna secured only 27.5% of votes and was defeated. Such was the returns for an upright and independent judge in the game of politics.
On the other hand, M H Beg, who as an SC judge was part of the constitution benches that had supported the government’s stand in Keshavananda Bharti and ADM Jabalpur, was conferred ‘Padma Vibhushan’, the nation’s second highest civilian award, in 1988 by the Rajiv Gandhi government for his “contribution to law and jurisprudence”.
Justice V R Krishna Iyer needs no introduction. He had famously said, “Law without politics is blind. Politics without law is deaf.” Iyer was a man whose heart bled for the downtrodden. His brain was in continuous flux to justify his way of dishing out justice, with or without the backing of law.
Early in his career, Iyer was more a politician than a lawyer. In 1952, he was elected to Madras Legislative Assembly with CPI support. When Kerala became a state, he was elected an MLA and as a minister in EMS Namboodiripad’s cabinet, held a host of portfolios. In 1960, he contested as an independent and defeated the CPM candidate. In the next election, the CPM candidate defeated him and he started focusing on his legal career.
He was appointed a judge of Kerala HC in July 1968. Three years later, persuaded by his ‘friend’ P R Kumaramangalam (then Union minister for steel and mines), Iyer joined the Law Commission as a member. On July 17, 1973, he was appointed a judge of the SC. With such a track record, he would not have become an SC judge, that too in five years of appointment as an HC judge, without machinations from friendly politicians.
Already branded a Marxist, his appointment to the SC was widely criticised. But his appetite for work and poorfriendly judgments soon dissipated the criticism. He retired from the SC on November 15, 1980, as a towering personality. But his original passion for politics was still simmering within him.
In 1987, he contested the President election as the combined opposition’s candidate. BJP did not support him. Its leader L K Advani said in a letter to him, “You are a handmaiden of Soviet Union and, therefore, we are not in a position to support you.” (Iyer’s book ‘Wandering in Many Worlds’). Like Justice Khanna, he got 27.5% votes and lost to Congress’s R Venkataraman. He then turned author and a critic of government policies.
The prize for the wiliest politician-turned-judge-turned-politician will go to Justice Bahrul Islam. Hailing from Kamrup district of Assam and an out and out Congressman, he was elected to Rajya Sabha in April 1962. He unsuccessfully contested election to Assam assembly while still an RS member. In 1968, he was reelected to the RS. After Congress split in 1969, he aligned with Indira Gandhi. He resigned from the RS in 1972 to become a judge of Gauhati HC. After retiring as HC chief justice on March 1, 1980, he returned to active politics.
In December 1980, nine months after retirement, he was made an SC judge. Months before his retirement from the SC, he resigned on January 13, 1983. The very next day, he got the Congress ticket to contest from Barpeta Lok Sabha constituency. A month before his resignation, he as SC judge had given Bihar CM Jagannath Mishra reprieve from trial for forgery and criminal misconduct [Sheonandan Paswan vs State of Bihar, 1983 (2) SCR 61]. When Barpeta elections were countermanded, he was elected unopposed to the RS for a third term from 1983 to 1989.
Justice Ranganath Misra became an SC judge on March 15, 1983, and on April 26, 1985, was asked to head a commission of inquiry into allegations of organised violence leading to massacre of Sikhs in Delhi in November 1984. His report, released in 1987, vaguely blamed the police for riots, failed to identify any person guilty of rioting and absolved Congress leaders from complicity in the riots, a perfect cover-up job to the liking of the Rajiv Gandhi government.
The untimely death of CJI Sabyasachi Mukharji allowed Misra to be sworn in as the 21st CJI on September 25, 1990, and he retired in November 1991. He became the first chairman of NHRC in 1993 and remained so till 1996. He was elected to Rajya Sabha as Congress candidate from Odisha in 1998 and became chairman of All India Congress Committee on Human Rights. When Congress came back to power in 2005, he headed two more important national commissions.
With the collegium system taking over the task of selecting persons for appointment as constitutional court judges in 1990s, the cycle of politician-lawyer-judge-politician stopped repeating. But retirement from constitutional courts surely allows judges to reveal their political colours and contest elections.
In India, politics and the legal profession run alongside. From freedom struggle to framing of the Constitution, lawyers Bal Gangadhar Tilak, Lala Lajpat Rai, Mahatma Gandhi, Sardar Patel, Motilal Nehru, Rajendra Prasad, Jawaharlal Nehru, C Rajagopalachari, Madan Mohan Malaviya, ‘Deshbandhu’ C R Das and Bhimrao Ramji ‘Babasaheb’ Ambedkar played stellar roles.
Lawyer-politicians Arun Jaitley, Abhishek Manu Singhvi, P Chidambaram, Ravi Shankar Prasad, Kapil Sibal, Satish Chandra Mishra, Vivek Tankha and many more continue the success story. Are there judge-politicians?
National Conference (NC) has now fielded former J&K HC judge Hasnain Masoodi for the Anantnag Lok Sabha constituency. Prior to his retirement, a bench headed by him had ruled that Article 370 of the Constitution, giving special status to J&K, couldn’t be “abrogated, repealed or even amended”. This three-year-old judgment could be a game changer for votes in Anantnag.
Justice Masoodi is not the only one to plunge into politics after retirement. Justice A M Thipsay joined Congress in 2018, a year after his retirement. Justice Vijay Bahuguna did the same but later switched to BJP. Former Punjab and Haryana chief justice M Rama Jois got affiliated to R S S/BJP and became governor.
What about SC judges? There is a rich legacy of the best SC judges getting swept off their feet by politics before and after their stint in constitutional courts and entering the electoral arena.
Ninth CJI Koka Subba Rao is known for his impeccable judicial leadership, which was instrumental in the apex court laying the foundation for the wall that would be constructed around citizens’ fundamental rights and shield it from the political executive. He was appointed CJI on June 30, 1966, and was to retire on July 14, 1967. He resigned on April 11, 1967, three months before his retirement. The very next day, he accepted the invitation of leader of opposition Minoo Masani to file nomination as the united opposition’s candidate to contest for the post of President. He became the first SC judge to resign and immediately enter the political arena.
The proximity of resignation and becoming the united opposition’s candidate would leave no one in doubt that while being the CJI, he was in active confabulations with political leaders. In the present era, he would have been trolled on social media and condemned by activist lawyers, who would have fished out his judgments against the government to mathematically prove his unholy nexus with politicians.
Even in 1967, Rao’s decision generated a good deal of controversy. To his credit, Rao gave a healthy fight. Congress candidate Zakir Hussain defeated him but he redeemed himself by securing 44% of the votes. Till then, the Congress candidate for the post of President had never received less than 97% of votes in the electoral college (source: G H Gadbois’s ‘Judges of the Supreme Court’).
Mohammed Hidayatullah, who became the eleventh CJI on February 25, 1968, was a member of Nagpur Municipal Corporation till 1946. A day before his retirement on December 17, 1970, he wrote the majority opinion and quashed the presidential order abolishing titles, privileges and privy purses of former princes [Madhavrao Scindia vs Union of India 1971 (3) SCR 9]. His ruling against the Indira Gandhi government’s decision resulted in Hidayatullah getting no assignment to head commissions of inquiry. He declined a flood of such assignments when Janata Party came to power in 1977.
He had thrice declined requests to contest the presidential election. Strangely, he agreed to become vicepresident in 1979. When then President Zail Singh went to the US for heart surgery, Hidayatullah served as acting president from October 6 to October 31, 1982. Gadbois writes, “No other citizen of India has served as CJI, presiding officer of Rajya Sabha (as vice-president) and acting president.”
But no one has seen politics and judiciary as closely as Justice Kawdoor Sadananda Hegde, who along with J M Shelat and A N Grover became household names in 1973 when the Indira Gandhi government superseded them to make A N Ray the CJI to wreak vengeance on them for being part of the majority judgment in Keshavananda Bharti case to rule against government’s view that it had a free hand in amending the Constitution.
Hegde joined Indian National Congress in 1935. After independence, he was elected to Rajya Sabha for a twoyear term on April 3, 1952. Two years later, he was reelected for a full six-year term in R S, but continued to practise in courts. On August 26, 1957, he resigned from R S to become a judge of Mysore HC and was sworn in as SC judge on July 17, 1967. When Justice Ray superseded Hegde, Shelat and Grover, all three resigned. During Emergency, he led the opposition to the tyrannical rule.
In the 1977 general elections, Hegde was elected to Lok Sabha from Bangalore North constituency on a Janata Party ticket defeating Congress stalwart K Hanumanthaiah. Following N Sanjiva Reddy’s resignation, Hegde was unanimously chosen as Lok Sabha Speaker on July 21, 1977. After the demise of Janata Party, he became one of the vice-presidents of BJP from 1980 to 1986. In 1984, he contested the Lok Sabha election as a BJP candidate but lost to the Congress nominee.
Judges in politics: India