According to a popular legal adage, hard cases make bad law. In such cause célèbres , the need to do justice, respond to widespread public interest and factor in the welter of emotional argument, often clouds dispassionate judgment. The appointment of Justice P. Sathasivam, former Chief Justice of India, as the Governor of Kerala, less than five months after his retirement as Chief Justice, though not a legal dispute, is an archetypal illustration of such a hard case. Interwoven are issues of the independence of the judiciary, purported favouritism by the government to express gratitude for a favourable decision and the desirability of post-retirement employment of judges to a range of government-appointed positions. Several critics, commentators and politicians have been quick to decry his appointment as an assault on the independence of the judiciary. While the post-retirement appointment of judges by government, especially very soon after their retirement, might lead to justifiable doubts about judicial independence, to use Justice Sathasivam’s appointment as Governor as an illustration mischaracterises the issue. It is oblivious to deeper, systemic concerns surrounding post-retirement employment and proceeds on an excessively fragile conceptualisation of judicial independence.
Judicial independence as dogma Speaking in the Constituent Assembly, Alladi Krishnaswamy Ayyar warned against conceptualising judicial independence as a dogmatic requirement. Unfortunately, it is precisely such a dogmatic conceptualisation that is widely prevalent today. Such a view considers any interaction between the executive and the judiciary with grave suspicion. Independence, according to it, is fragile and capable of being eroded at the slightest provocation. Its manifestation can be seen in the wanton speculation linking Justice Sathasivam’s appointment with a decision given by him quashing a second FIR registered against Amit Shah in the Sohrabuddin Sheikh encounter case (Supreme Court, 2013).
“Justice Sathasivam’s appointment as Governor has the potential to reinfuse a semblance of independence into a hopelessly partisan office”
This argument is flawed both in theory and practice. Theoretically, the acceptance of such a view as affecting the independence of the judiciary would mean actively disincentivising judges from adjudicating cases involving politicians, where free and fair justice would be most required. The speculative insinuations made simply owing to a judge hearing such a case, irrespective of the validity of judicial reasoning employed, have the pernicious effect of tarnishing a judge’s reputation. Accepting judgeship does not include an implied acceptance of character assassination and must not become so.
Need for systemic reform In practice, without direct evidence of a quid pro quo , or circumstantial evidence of excessive closeness between Justice Sathasivam and the government or any other interested political party, claiming judicial independence to be adversely affected is simply baseless. Even if it is argued that it is not whether the independence of the judiciary is actually affected that is the test but whether there is a reasonable perception that it is so, this reduced threshold is also not met in this case. It would require turning a blind eye to the fact that Justice Sathasivam has been appointed Governor by a government that is different from the government in power when he served as Judge of the Supreme Court and the Chief Justice of India. Further, such an argument would have to be premised on a particularly self-serving conception of a reasonable person as being cynical, captious and dismissive of the notion of judges as persons of high integrity. It would also have to be a person with a superhuman ability to read between the lines of what otherwise reads as an entirely tenable judgment delivered by Justice Sathasivam on the facts of the case. It is trite that such a person would hardly be the exemplar of reasonableness.
This is not to suggest that post-retirement employment of judges in government-appointed positions does not raise legitimate concerns of judicial independence, but simply that this instance does not encapsulate these concerns. In a study by the writer of a representative sample of 50 retirees from the Supreme Court between 2002 and 2012, it was found that 37 judges held post-retirement jobs in 46 government-appointed positions; 14 of these appointments were made by the executive alone.
The numbers demonstrate that the widespread criticism that the judiciary has faced for accepting such positions is arguably justified. The Union Finance Minister, Arun Jaitley, a former Law Minister had pithily remarked of there being two kinds of judges — “those who know the law and those who know the Law Minister.” Governments too have been deemed to be complicit in the erosion of judicial independence that such appointments occasion. Justice V.R. Krishna Iyer, writing extrajudicially on post-retirement employment noted, “Judicial afternoons and evenings are sensitive phases, the incumbent being bothered about post-retiral prospects. The Executive plays upon this weakness to bend the integrity or buy the partiality of the elderly brethren.”
While both the judiciary and the executive are shown in less than salutary light in the matter of post-retirement employment of judges, to suggest that judicial independence is affected simply by pliant judges and a devious executive would be overly simplistic. On the contrary, concerns over judicial independence are deeper and systemic; 24 out of the 37 judges who have been employed post-retirement in government-appointed positions have held the office of a commission or statutory tribunal Chairperson or Member; 23 out of these 24 positions have required a sitting or retired judge by law. Further, these statutes seek to make full use of the early retirement of Supreme Court judges at 65 and even earlier retirement of High Court judges at 62. By usually providing a minimum of three years of service beyond such age, these statutes underline that judges are capable of performing a significant public function beyond the age at which they are considered past their prime for judicial office.
This demonstrates that the current pervasiveness of post-retirement employment of judges leading to concerns about judicial independence is at its core, traceable to statutes setting up various tribunals and commissions that require a judge by law combined with the early retirement age for judges.
To address this, two interventions are necessary — first, the retirement age of both Supreme Court and High Court judges must be increased to either 68 or 70 consistent with a widespread international trend; second, an amendment to the statutes setting up tribunals and commissions and manning them with a professional cadre of tribunal judges or sitting members of the higher judiciary on deputation must be urgently considered. If these are implemented, a post-retirement bar on tribunal and commission employment of judges — the pervasive cause of doubts regarding judicial independence — can be legitimately proposed. This has no relation whatsoever with the appointment of Justice Sathasivam as Governor of Kerala.
An independent governor As far as the independence of the judiciary being affected is concerned, Justice Sathasivam’s appointment is thus a red herring. The key independence question does not pertain to the judiciary but rather the potential his appointment has to restore the independence of the office of the Governor. Both the United Progressive Alliance (UPA) and the National Democratic Alliance (NDA) governments are responsible for generally treating the office of Governor of a State as a sinecure for party members, sympathisers and loyalists. In a political atmosphere where gubernatorial appointments are considered by the government and grudgingly accepted by the polity as such, the appointment of a retired judge can be seen as restoring to some extent the dignity of an exalted constitutional office or at least starting a conversation on the principles that ought to govern such appointments.
It cannot be anybody’s case, that in comparison to party old-timers, Justice Sathasivam does not bring an independent, politically neutral and dispassionate perspective to the Raj Bhavan in Thiruvananthapuram. Unlike a significant proportion of recent appointees, he bears no overt political affiliations and can discharge his constitutional duties without aspersions on his independence. His appointment, unlike other appointments by the present NDA government so far, is the only one perfectly consonant in letter and spirit with the observations of the Supreme Court in B.P. Singhal v. Union of India (2010) wherein it said, “[T]here is no question of the Union Government having Governors who are in sync with its mandate and policies.”
Though one swallow does not make a summer, Justice Sathasivam’s appointment as Governor has the potential to reinfuse a semblance of independence into a hopelessly partisan office. This, rather than its impact on judicial independence, is what it is a precedent for. Conflating the two, especially by making speculative arguments, would amount to a mischaracterisation that is unfair to Justice Sathasivam and counter-intuitively detrimental to the very independence of the judiciary that such arguments ostensibly seek to protect.
(Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy, a New Delhi-based legal policy think-tank.)