Setting a troubling precedent

An independent, impartial judiciary cannot exist if its members do not remember their judicial vows even after they demit office

Updated - April 21, 2016 05:26 am IST

Published - September 05, 2014 03:08 am IST

POOR JUDGEMENT? For the Chief Justice of India to be seen as opting for a gilded cage of governorship may well be seen as a validation of the government’s carrot-and-stick approach. Picture shows a view of Raj Bhavan in Bangalore. Photo: K. Gopinathan

POOR JUDGEMENT? For the Chief Justice of India to be seen as opting for a gilded cage of governorship may well be seen as a validation of the government’s carrot-and-stick approach. Picture shows a view of Raj Bhavan in Bangalore. Photo: K. Gopinathan

None of the 39 Chief Justices of India before >Justice P. Sathasivam chose to become Governor of a State after their retirement. Raj Bhavans were normally assigned to career politicians and bureaucrats whose knowledge of statecraft would be available to the State governments to whom they were expected to be a friend, philosopher and guide. It was only when an unexpected vacancy arose that the Chief Justice of a High Court was called upon to officiate till a regular appointment was made.

A few judges of High Courts have held post-retirement sinecures as Governors, but the Chief Justice of India has always been seen as too exalted a person to be accommodated in a Raj Bhavan. According to the warrant of precedence, outside the State, Governors rank at number eight — below the Chief Justice of India who occupies the sixth place along with the Speaker of the Lok Sabha. The only Supreme Court judge who was appointed as a Governor was Justice Fathima Beevi from Kerala, who served as Governor of Tamil Nadu between 1997 and 2001. Her stint as Governor was not without controversy and she resigned before completing the normal term of five years.

For a cooling-off period It is in this background that we must examine the question of whether Justice Sathasivam has been wise in >accepting the Governorship of Kerala . He has enjoyed a successful, though short, stint as Chief Justice, and his judgments in the Supreme Court will stand the test of time. He attracted much praise as Chief Justice and no major controversy marred his tenure.

When newspapers reported that he went back to farming in Erode, it resembled the story of Harry Truman returning to the little town of Independence, Missouri, after being the U.S. President. Indian democracy seemed to be coming of age as at least some of its constitutional functionaries were receptive to the idea of not being in the limelight all the time.

Justice Sathasivam seems to be following the lead of Chief Justice M.N. Venkatachaliah, who, after retirement, only resurfaced many years later to head a constitutional review committee. Some retired judges like Justice Ruma Pal have even declined to act as arbitrators, to avoid the prospect of some court being forced to sit in appeal over their awards. Some who took their judicial vows seriously continue to maintain the highest standards of their judicial avatars and keep them beyond even the shadow of any possible allegation.

Justice Sathasivam’s decision to opt for a five-year retirement period as first citizen of a state will set a troubling precedent. If at all the judiciary was to be represented among the incumbents of gubernatorial houses, it is wrong to have appointed a man who, till a few months ago, was sworn to render justice without fear or favour in quarrels between the citizen and the Union. A mandatory cooling-off period — such as the two-year period for public servants transiting into private employment — must be applied to this case also. One cannot seamlessly transit from the court to the castle, without the suspicion that there was a prior agreement of sorts. There are at least a dozen retired Chief Justices of India in reasonable good health who could have been appointed without the >comments that this particular appointment has attracted .

Impartiality of the judiciary Public confidence in an impartial judiciary is a necessary prerequisite for an independent judiciary. That confidence is sometimes undermined by doubts on the part of the citizen: that the judge may be enticed by a post-retirement sinecure that the state may offer. If the head of the institution himself accepts a post-retirement appointment where no judicial skills are called for, the very independence and impartiality of the judiciary will be called into question.

More importantly, the only time that a Governor’s constitutional functioning becomes >politically relevant is when there are questions about the imposition of President’s Rule or in deciding rival claims of majority before calling someone to be sworn in as Chief Minister. A decision on such questions is often challenged in the courts and after Buta Singh’s case, is amenable to judicial review. If a former Chief Justice as Governor makes an incorrect decision to recommend President’s Rule for example, his juniors and successors may have the painful duty of setting it aside judicially. Justice Beevi’s report to the Union government on the arrest of Karunanidhi drew adverse comment from Mr. Arun Jaitley, who was Law Minister then. One hopes that Justice Sathasivam’s conduct as Governor attracts no such criticism that would reflect poorly on the high office of the Chief Justice.

Remembering judicial vowsAcche din may or may not have arrived for the country but it has been interesting times for the judiciary. The new government began its judicial engagements by ‘borking’ Gopal Subramanium’s appointment to the Supreme Court. It then rushed the National Judicial Appointments Commission Bill through Parliament. A pattern is emerging where an assertive executive is seen as trying to put the judiciary through a stress test. Some may prefer collaboration to confrontation.

At such a time, for the former head of the institution to be seen as opting for a gilded cage of governorship may well be seen as a validation of the government’s ‘carrot-and-stick approach.’ This is not the message that the country and members of the legal fraternity want to hear or contemplate. In the 1970s, the long struggle against the call for a committed judiciary foreshadowed the descent into the dictatorship of the Emergency. The Supreme Court and its judges cannot lead the country down that same path again. An independent, impartial judiciary cannot exist if its members, do not remember their judicial vows even after they demit office. When confronted with difficult questions, Justice Sathasivam has always set the right precedent as a judge. It is hoped that here too his judgment will not be found wanting and the precedent set will stand the scrutiny of future generations.

(Sanjay Hegde is a Supreme Court lawyer.)

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