There is a constitutional line that is not meant to be crossed often - the line between those who decide disputes and those who shape the State’s legal position in them. Yet, the growing practice of deploying serving judicial officers as law officers, advisors or functionaries within governments, corporations and authorities has begun to blur that line in ways that are both unnecessary and constitutionally troubling.
This is not merely a question of administrative deployment. It goes to the heart of the basic structure of the Constitution. Judicial independence is not an abstract ideal; it is a functional necessity that ensures that disputes between the citizen and the State are resolved by a body that is structurally and psychologically detached from executive influence. The moment that detachment becomes porous, even in limited contexts, the credibility of adjudication begins to diminish.
The problem is not merely theoretical. It begins with a simple, hard reality: India does not have enough judges. The system is weighed down by pendency running into crores and a judge-to-population ratio that has never reached even the modest benchmarks suggested decades ago by the Law Commission. In such a setting, every judicial officer represents not just an individual functionary, but a unit of constitutional capacity - a scarce public resource meant exclusively for adjudication. To divert that resource into executive advisory roles is not administrative innovation; it is a quiet depletion of justice delivery itself.
But the deeper concern lies in the incompatibility of roles. A judicial officer who, while in service, offers legal opinions, participates in file notings, or advises the executive on the defensibility of its actions, steps into the shoes of a stakeholder. The Constitution does not envisage such fluidity. It expects a judge to be a neutral arbiter, not a prior architect of the very decisions that may later come under judicial scrutiny.
The Supreme Court has consistently guarded this boundary. In State of Bihar v. Bal Mukund Sah (2000), the Court emphasised that members of the judicial service are not mere government employees but form part of an independent constitutional structure, insulated from executive influence. This position was reinforced in All India Judges’ Association v. Union of India, (1992), where the Court underscored that judicial officers discharge sovereign judicial functions. Later, in Union of India v. R Gandhi (2010), the Court reaffirmed that independence of the judiciary is part of the basic structure and cannot be diluted through executive arrangements.
These are not abstract principles. They go to the heart of public confidence. The legitimacy of adjudication rests as much on the absence of bias as on the absence of the possibility of bias. Justice must not only be done, but must also be seen to be done becomes fragile when a judge has previously advised the State on the very matter that later reaches the courtroom.
The Constitution anticipated this risk. Article 50’s directive to separate the judiciary from the executive was not an ornamental aspiration; it was a structural safeguard. Article 235’s vesting of control over the subordinate judiciary in the High Courts further reflects the same concern - that judicial officers must remain within a closed constitutional loop of accountability, not be dispersed into executive hierarchies.
Article 50 is often described as a Directive Principle, but in substance it reflects a constitutional anxiety - that concentration of adjudicatory and executive functions in the same hands is inherently unsafe. This concern has repeatedly informed judicial decisions where the Supreme Court has insisted on maintaining clear functional boundaries, recognising that even subtle forms of executive influence can corrode judicial independence over time.
This concern finds contemporary resonance in Madras Bar Association v. Union of India (2021) where the Supreme Court, reiterating earlier precedents, held that institutional independence of adjudicatory bodies cannot be compromised by executive control or influence, as such independence forms part of the Constitution’s basic structure.
What makes the current trend difficult to justify is that the executive is not without alternatives. Governments command vast legal resources - panels of advocates, law departments and the ability to recruit specialised legal cadres. If additional expertise is required, the pool of retired judges and independent experts remains available without the baggage of future adjudicatory conflicts.
The objection is not confined to actual bias. It is rooted in the well-established doctrine of nemo judex in causa sua - that no one shall be a judge in their own cause. This principle extends beyond direct pecuniary interest to include prior advisory involvement or participation in decision-making processes. A judicial officer who has contributed, even indirectly, to the formulation of a governmental decision carries with him an institutional imprint that cannot be easily erased at the stage of adjudication. The law guards as much against the likelihood of bias as against bias itself.
This concern extends, in a nuanced way, to mediation centres and legal services authorities. These institutions are aligned with judicial functions and play a vital role in access to justice. Yet, even here, the question must be asked: does every level of these institutions require the presence of serving judicial officers?
While strategic leadership at the highest level may benefit from judicial oversight, the operational backbone of these institutions should be built through independent cadres or personnel drawn from the executive. In fact, the direction of borrowing ought to be reversed. The judiciary must borrow, not lend, its scarce human resources.
Judicial independence does not collapse dramatically; it erodes incrementally. Each deputation, each advisory role chips away at institutional clarity. The solution lies in returning to first principles. A judicial officer is a constitutional adjudicator, not a generalist functionary.
If the executive needs lawyers, it must build them. If institutions need administrators, they must recruit them. But if justice is to retain its credibility, judges must remain judges.
Shridhar Prabhu is an advocate practising before the Karnataka High Court.