Judicial fairness and public trust

The appointment of judges with a political past can diminish faith in the neutrality of the institution

The Supreme Court collegium’s recommendation of elevating advocate Aarti Sathe, a former spokesperson of the Maharashtra BJP, as a judge of the Bombay High Court, has reignited an important conversation about the judiciary’s independence in India. On paper, Aarti Sathe is fully qualified. She meets the constitutional criteria, and she formally resigned from her party posts over a year ago. Yet, the reactions to her elevation reflect deeper anxieties. In an era of political polarisation and executive assertiveness, the question is not simply whether a judge is competent or legally eligible, but whether the appointment process inspires public trust.

Historically, India has not been rigid about drawing a sharp line between politics and the judiciary. Justice V R Krishna Iyer served as a minister in Kerala’s first Communist government before emerging as one of the most respected judges in the Supreme Court. The country has seen many other judges who have held political offices.

What distinguishes the present moment is not merely that someone with a political past has been appointed. It is the broader context of how judicial appointments are being handled. Over the last few years, the Union government has selectively stalled or refused collegium recommendations without offering public reasons. Names like senior advocates Saurabh Kirpal, Aditya Sondhi, and John Sathyan have been repeatedly withheld, reportedly over ideological discomfort or past remarks. Against this backdrop, the smooth elevation of a recently active BJP functionary invites scrutiny of the process itself.

The Bangalore Principles of Judicial Conduct, endorsed by the United Nations, underscore that judges must avoid not only impropriety but also its appearance. The United States Supreme Court observed in Offutt v. United States (1954) that "justice must satisfy the appearance of justice". The legitimacy of the judiciary, in other words, rests not just on its independence, but on whether it is widely seen to be independent. In Aarti Sathe’s case, even if she were to act with complete fairness, the proximity of her political past to her judicial appointment risks blurring the line between adjudication and affiliation in the public imagination.

This is not a uniquely Indian dilemma. The US offers a striking counterpoint. There, judicial appointments are overtly political, but transparently so. Nominees to the US Supreme Court are publicly vetted and confirmed largely based on their ideological leanings, and senators vote on their elevation accordingly. The process reflects a certain democratic maturity, where ideological preferences are acknowledged, debated, and subjected to institutional checks.

India, on the other hand, aspires to insulate the judiciary from overt ideological influence. Yet, it increasingly finds itself caught in a paradox: the process remains opaque, and decisions are selectively filtered by an invisible hand of executive preference. This quiet and unaccountable influence, combined with the absence of transparency, makes the Indian model far more vulnerable to public mistrust.

When the executive holds sway

The larger risk is that of normalising a silent shift in how the Bench is composed. Once the judiciary begins to be seen as an extension of the executive’s patronage network, litigants may hesitate to bring politically sensitive matters before the courts. Lawyers may begin to view political networking as a more viable path to the Bench than legal distinction. The separation of powers, a foundational principle of the Constitution, could be eroded not through overt constitutional change but through subtle, cumulative distortion.

In light of this, one reform worth considering is a cooling-off period between active political roles and eligibility for judicial appointment. A mandatory gap of three to five years could help create a clearer break between political loyalty and judicial office. This would not eliminate all concerns, but would provide a basic procedural safeguard, allowing former politicians to re-establish a professional identity outside of partisan affiliations before entering the judiciary.

It is worth recalling that the Supreme Court itself rejected the National Judicial Appointments Commission, holding that judicial appointments must be protected from executive interference. But that principle cannot survive in spirit if the executive continues to use its residual powers to selectively approve or block names.

The appointment of a former party spokesperson is a telling example of how institutional norms are evolving. The question is not whether one individual will act fairly, but whether the system will remain fair to all. Judicial independence and legitimacy are sustained not just by legal safeguards but by public belief in the neutrality of the institution. The law may allow such appointments. But the Constitution, and the democracy it supports, demand more.

(The writer is a lawyer and research consultant)