Sunday, May 17, 2015

Judges with Elected Experience

Guest post by Douglas McDonald
Amidst debates surrounding potential political interference in the appointment of judges through the NJAC,[1] it is worthwhile to reflect upon the Supreme Court’s history of judges who had experience in elected office (or otherwise as legislators) prior to their appointment to the bench. Such appointments have been more frequent in, for example, the United States (where appointments of former politicians are not unknown and even today are relatively common on the nation’s state courts) or Australia (where twelve of the 51 justices of the High Court had held elected office prior to their appointment, albeit none appointed since 1975, and where two currently-serving judges of the Federal Court are former members of the Australian House of Representatives). As George H. Gadbois, jr. has written (of the Supreme Court’s judges appointed prior to 1989), ‘[p]articipation in politics prior to high court or SCI appointment was more common than most realise’.[2] However, such appointments still appear relatively exceptional in India.

Five judges of the Supreme Court of India had held seats in national, colonial or state legislatures at some point prior to their appointment to the bench:
·       K. S. Hegde (Rajya Sabha, 1952-1957);
·       Baharul Islam (Rajya Sabha, 1962-1972);
·       Ghulam Hasan (United Provinces Legislative Assembly, 1937-1939);
·       P. J. Reddy (nominated member of the Hyderabad Legislative Assembly, 1946-1947); and
·       V. R. Krishna Iyer (Madras Legislative Assembly, 1952-1957; Kerala Legislative Assembly, 1957-1965). ·

Of these, only Hegde and Islam resigned their seats to take up judicial office; the legislative careers of each of the others had ended before (in Hasan and Reddy’s cases, long before) their judicial service. (Somnath Chatterjee, long-serving MP for the CPI(M), states in his autobiography that he was offered a seat on the Supreme Court by Rajiv Gandhi.[3] Such an appointment would have been extraordinarily unusual given his ongoing political service and lack of prior judicial experience.)

Other Supreme Court judges had held roles in local government prior to their judicial service. For example, Mohammad Hidayatullah served on Nagpur Municipal Council (1932-1935, 1943-1946); Bachu Jagannadhadas was a member of the Madras City Corporation (1938-1943); V. Khalid served on Cannanore Municipal Council (1948-1949); and Kamal Narain Singh played an active role in Allahabad’s municipal governance for over a decade (serving from 1951 to 1958 on the Allahabad District Board and from 1958 to 1962 on the Allahabad Zilla Parishad).

Some High Court judges have similarly held legislative positions prior to their appointments to the bench. For example, R. R. Bhole served in the Bombay Legislative Assembly (1937-1942) and was later appointed to the Bombay High Court (1969-1975); B. N. Deshmukh similarly served in the Maharashtra Legislative Council (1978-1984) prior to his appointment to the Bombay High Court (1987-1997). Interestingly, despite the fact that no Supreme Court judge appointed since Baharul Islam has held parliamentary office prior to their judicial service (to the best of my knowledge), this has not similarly been the case on the High Courts; Ferdino Rebello, who served a single term in the Goa Legislative Assembly (1977-1980), later served on the Bombay High Court (1998-2010) and as Chief Justice of the Allahabad High Court (2010-2011).

Rebello was, however, an exception even amongst exceptions; appointments of this kind, never common, appear to have become even more unusual in recent years. Even though Indian judges have engaged in political activity prior to their appointment, whether as candidates for office or in non-elected capacities, or even following their retirement from the bench,[4] such experience cannot be considered comparable to a ‘full-time’ political career (or service in a legislative or executive capacity) and is, in any case, still relatively rare in the Indian context. Even jurisdictions with a tradition of appointments with prior political experience have employed them less frequently in recent years; despite perennial speculation, no judge of the highest courts of the United States, Australia, Canada or the United Kingdom served in elected office prior to their appointment.

The end to this tradition of judges with experience in public life has been mourned in other nations. George Brandis, currently Attorney-General for Australia, has asserted that Australian jurist Garfield Barwick ‘was a better judge because of his experience at the highest levels of government.’[5] Terri Peretti has noted that ‘[t]he loss of distinguished politicians on the [US Supreme] Court risks its representational qualities and its effectiveness as a policy maker and co-equal branch of government.’[6] Similarly, Philip Slayton has observed that Chief Justice Earl Warren’s ‘understanding of the law-making process, as a former politician, stood him in good stead when interpreting and adjudicating the law as a judge’.[7] Even Douglas Abbott, the last Canadian parliamentarian to be appointed to the Supreme Court of Canada, was (in Slayton’s analysis), if not a great judge, ‘a useful one’ owing to his understanding of parliamentary processes.[8]

Equivalent observations have been made in India with regard to the relationship between the political experiences and subsequent judicial approach of Justice V. R. Krishna Iyer. K. M. Sharma, who elsewhere noted Krishna Iyer’s ‘proclivity to pay policymaker’ from the bench – utterly distinct from the previously-prevailing norms of ‘austerity and detachment traditionally imposed upon a judge’[9] – observed that Krishna Iyer’s political background ‘most influenced his judicial career’.[10] To Sharma, Krishna Iyer’s years in politics ‘brought with them a general restlessness with the traditional judicial approach to decision making.’[11] S. P. Sathe, while noting that the ‘high legitimacy of the [Indian] Supreme Court’ arises from its appearance as ‘a body aloof from politics’, acknowledged that several judges with prior parliamentary or ministerial experience (including V. R. Krishna Iyer) ‘stand out as examples as good judges’; Sathe observed that, provided that such judges act impartially, ‘their past political experience could be an asset.’[12] Krishna Iyer himself admitted that his ‘unique experience of being an opposition member in the legislative assembly, battling elections, participating in controversial administrative policies and adopting a firm leftist outlook’ contributed to his iconoclastic judicial approach.[13]

One should not overstate the role of Krishna Iyer’s political experience and philosophy in determining his approach on the bench. A ‘psychobiological’ approach, or a disproportionate emphasis upon Krishna Iyer’s political commitments, would undervalue the role of the pre-existing constitutional framework and the institutional and political context of the Supreme Court in providing opportunities for the substantial innovations Krishna Iyer introduced to the theory and practice of Indian law. Nonetheless, one may argue (with support from Krishna Iyer’s own writings) that the late judge’s unique contributions to Indian law were in some sense enabled or inspired by his political experiences.

This post expresses no concluded view on the NJAC, or indeed on the desirability of any other method of judicial appointment. However, in whatever way judges are ultimately appointed, I believe that the judiciary stand to benefit from the presence of judges whose understanding of the operations of the legislature, of the relations between the various branches of government and of political life is more than purely theoretical or anecdotal – and that the appointment of judges who have previously served in elected office, provided that such judges are able to set aside partisan fervour, is one way of accomplishing this. 

Douglas McDonald is a solicitor with Craddock Murray Neumann Lawyers, Sydney, and a former exchange student at the National Law School of India University. Part of this blog post has been adapted from his LLB (honours) thesis at the University of Technology, Sydney. He is grateful to the editors of Law and Other Things for the opportunity to publish this piece, and is indebted to the work of George H. Gadbois, jr. in making this piece possible.

[2] George H. Gadbois, jr., Judges of the Supreme Court of India 1950-1989 (2011) 362.
[3] Somnath Chatterjee, Keeping the Faith: Memoirs of a Parliamentarian (2010).
[4] India arguably enjoys a surfeit of former judges who have served in legislative or executive roles following their retirement from the bench – both in earlier eras (for example, H. R. Gokhale, M. C. Chagla and former Supreme Court justices K. S. Hegde and Baharul Islam, both of whom served in Parliament before and after their judicial service) and in the present day (including M. Rama Jois, N. Y. Hanumanthappa, Ranganath Misra and Vijay Bahuguna).
[6] Terri L. Peretti, ‘Where Have All the Politicians Gone? Recruiting for the Modern Supreme Court’ (2007-2008) 91 Judicature 112.
[8] Ibid.
[9] K. M. Sharma, ‘The Judicial Universe of Mr. Justice Krishna Iyer’ in Dhavan, Sudarshan and Khurshid (eds), Judges and the Judicial Power: Essays in Honour of Justice V. R. Krishna Iyer (1985) 329.
[10] Ibid 317.
[11] Ibid.
[12] S. P. Sathe, Judicial Activism in India (2002) 299.
[13] V. R. Krishna Iyer, Wandering in Many Worlds (2009) 172.
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