Justice as Governor?

THE former Chief Justice of India (CJI) P. Sathasivam had a good reputation both as a judge and as an administrator of the Supreme Court. He is a man of integrity and was held in high esteem by his brethren on the Bench and by members of the Bar who appeared before him. However, that he agreed to be sworn in as the Governor of Kerala on September 5, overlooking many voices of protest, has brought his stature down by several notches.

It is the first time that a former CJI has been appointed the Governor of a State by the President on the recommendation of the Central government. It has led to legitimate apprehensions that a post which has so far been considered inappropriate for a retired CJI by both the executive and the judiciary might become a handy tool for the executive to woo those members of the judiciary who are close to retirement. This has ominous portents for the independence of the judiciary, which is a part of the basic structure of the Constitution.

Sacrosanct principle

The independence of the judiciary has many facets. That the judiciary has to be free from the executive’s pulls and pressures in order to deal with the cases before it with absolute fairness and objectivity is sacrosanct. This principle is vindicated at a time when governments—both Central and State—are the largest litigants in the courts. That is why when the Central government recently brought in the National Judicial Appointments Commission (NJAC) Bill to replace the collegium system of appointments to the higher judiciary, it led to misgivings about the intentions of the government. Successive CJIs, including Justice Sathasivam, had held the view that the collegium system was indeed working well and should be improved upon instead of throwing the baby away with the bathwater.

The crux of the issue is whether the collegium system, which gave primacy to the judiciary over the executive in the appointment process, had led to aberrations and whether the NJAC Bill, which Parliament passed recently, will be effective in restoring the balance between the two organs. The Bill and the accompanying Constitution 121st Amendment Bill 2014, which has to be ratified by half of the State Legislative Assemblies before it secures the President’s assent, were challenged as unconstitutional in the Supreme Court by several petitioners, including the eminent jurist Fali S. Nariman. But the court found the challenge premature and refused to hear the matter before the Bill became an Act of Parliament.

The NJAC will consist of six members, namely, the CJI, the two senior-most judges of the Supreme Court, the Union Law Minister, and two eminent members to be chosen by a committee comprising the Prime Minister, the CJI and the Leader of the Opposition (where there is no designated Leader of the Opposition, the leader of the largest opposition party), with one of the two eminent members being from the Scheduled Castes/Scheduled Tribes/Other Backward Classes/Minorities/Women. Despite these safeguards, the Bill’s provision that any two members of the NJAC could exercise a veto over the commission’s recommendations is looked at with suspicion by those who fear that the primacy of the judiciary in the appointment process may be compromised so as to threaten the independence of the judiciary.

Justice Sathasivam’s acceptance of the post of Governor exposes the doublespeak of those who are critical of the NJAC on the grounds that it compromises the independence of the judiciary. Those who defend the collegium system appear to have no compunction in accepting post-retirement jobs offered by the executive.

It is not wrong per se for judges to accept post-retirement jobs. Indeed, it is perfectly legitimate for former CJIs to be considered for the post of the Chairperson of the National Human Rights Commission (NHRC), which is a statutory body, with a provision in the Act creating it reserving the post to former CJIs. The chairperson and other members of the NHRC are chosen by a selection committee comprising, among others, the Prime Minister and the Leader of the Opposition. Former judges are also eligible for a number of other posts, such as chairmanships of various tribunals and commissions of inquiry.

In contrast, the appointment of a Governor of a State is completely in the hands of the Central government, which has always considered it a patronage to be distributed among its senior party members in recognition of their services to the party. The manner in which the Narendra Modi government sought to remove the incumbents of the Raj Bhavans in order to replace them with its own supporters is inconsistent with the principle laid down by the Supreme Court that a Governor cannot be replaced simply because of a regime change at the Centre. Ironically, Justice Sathasivam will be replacing Sheila Dikshit, who had to quit following the regime change at the Centre.

Political appointments

If the intention of the Modi government is to appoint eminent persons to non-political posts such as Governors, it is not reflected in the choice of the other Governors it has appointed, all of whom have been associated with the Bharatiya Janata Party (BJP) over the years. Kalyan Singh, Governor of Rajasthan, and Vajubhai Vala, Governor of Karnataka, are just two examples.

Therefore, the insinuation that Justice Sathasivam has been singled out and rewarded with the post of Governor, when there were other former CJIs who could have been considered for the post has to be looked at carefully. Critics of Justice Sathasivam have pointed out that he had quashed the second charge sheet against the BJP president Amit Shah in the Sohrabuddin encounter case. The judgment, delivered on April 8 last year by a Bench comprising Justice Sathasivam and Justice B.S. Chauhan, held that the Central Bureau of Investigation (CBI) could not file a second charge sheet against the accused, to investigate the murder of a crucial witness, Tulsiram Prajapati. According to experts, this case was decided on sound legal principles and the doctrine of precedent. The allegation of quid pro quo against Justice Sathasivam, thus, is unconvincing.

Wrong precedent

But this does not detract from the fact that Justice Sathasivam’s acceptance of the Governor’s post sets a wrong precedent. True, there is no express legal bar on a former judge accepting such a post. However, the issue must not be reduced to technicalities but be judged on the basis of people’s perceptions of the credibility of a judge.

It is possible to suggest that Justice Sathasivam’s appointment is not without precedent. Justice Fathima Beevi was appointed the Governor of Tamil Nadu after her retirement from the Supreme Court. Former CJI Koka Subba Rao delivered the landmark Golak Nath judgment, which held that Fundamental Rights cannot be amended. The judgment went against the then Indira Gandhi government. Justice Subba Rao became the joint opposition candidate in the presidential election of 1967 and lost to Zakir Hussain. Justice V.R. Krishna Iyer, too, contested the presidential election after retirement and lost.

But there is a fundamental difference between these precedents and Justice Sathasivam’s appointment. Justice Fathima Beevi was just a judge of the Supreme Court, and even her appointment was criticised for lack of propriety. As Chairman of the Law Commission Justice A.P. Shah said in an interview to a daily: “The post of the CJI is too revered an office to be exposed to doubts and aspersions on account of such an appointment.”

Appointing retired judges to a government position within a year of their retirement creates incentives for sitting judges to curry favour with the government with a view to getting a post-retirement job, Justice Shah said. The Law Commission, in its 232nd report, has said that sitting judges “seek consideration for such appointments either on the eve of their retirement or after their retirement”. Contesting an elected office after retirement is different from accepting an offer of appointment from the executive, soon after retirement from the Bench.

K.V. Viswanathan, former Additional Solicitor General, wrote an open letter to Justice Sathasivam, expressing his disappointment. Pointing out that the office of the Governor is at the pleasure of the executive, he asked Justice Sathasivam to introspect whether the very Home Secretary whom he might have summoned to court could ask him to quit as Governor. He wrote: “When judges, present or past, cosy up to the executive, it causes a lot of uneasiness. And when a recently retired CJI is that incumbent, the uneasiness is bound to be much more.... The arms-length distance between the executive and the judiciary, of course with mutual respect, needs to remain even after demitting office. If arms length is replaced by a warm embrace, it portends grave danger.”

Insufficient answer

Justice Sathasivam, in his defence, said he accepted the post only to serve the people of the State “whole-heartedly” and that he expected to be a bridge between the State Government and the Centre. He also said that unlike many other former CJIs and Supreme Court judges, he refrained from taking up an arbitration assignment or consultancy for corporate houses. Observers find this argument an insufficient answer to the criticism that his acceptance of the post will compromise the independence of the judiciary.

The All India Bar Association and the Kerala High Court Advocates’ Association have condemned the appointment. Opposition parties like the Congress and the Aam Aadmi Party, too, have criticised the appointment. A writ petition filed in the Supreme Court challenged the appointment as unconstitutional and the fate of this petition was unclear until the time of going to press.

It is perhaps naive to expect the Narendra Modi government to refrain from taking steps which might even remotely suggest that it wants a committed judiciary. But the judiciary has to be blamed if its members assume that the high rectitude which governed their conduct in office is not relevant after their retirement from the Bench.