New Delhi, Sept. 1: Reports that former Chief Justice of India P. Sathasivam may be appointed Kerala governor have dismayed the legal fraternity, many of whose members believe such a move could weaken public confidence in the judiciary’s independence.
They argued that although there was no constitutional bar on judges accepting post-retirement jobs, propriety demanded they did not accept posts that required them to report to the executive and function at its pleasure.
A widely accepted view that has emerged is that the government should pass a law to fix a cooling-off period — say, of two years — before retired Supreme Court and high court judges can accept new jobs. Justice Sathasivam retired as CJI on April 26 this year.
Justice K.T. Thomas, a former Supreme Court judge from Kerala, said that one possible danger of quick post-retirement appointments was that people might wonder if the judge had “hobnobbed with the powers that be” and accepted the post “on the eve of retirement”.
Such suspicions would not arise in Justice Sathasivam’s case because a different government was in power when he retired.
“If a Supreme Court bench, where a judge is on the verge of retirement, is hearing a case involving political matters, it will create doubts. Let us assume they decide it impartially, but confidence in the judiciary would be eroded,” Justice Thomas told The Telegraph.
Without public confidence, “the judiciary is like a fish out of water”, he said. “So, to sustain public confidence, at least a quarantine period of two years should be there.”
Justice Thomas recalled that only one retired Supreme Court judge had been appointed governor before — Justice M. Fathima Beevi was sent to the Chennai Raj Bhavan in 1997. It didn’t create much controversy then but times have changed, with judges’ conduct coming under increasing scrutiny in an age of 24x7 media coverage.
Just one former Chief Justice of India, Justice P.B. Gajendragadkar who held the post in the 1960s, is known to have accepted a post-retirement job — as vice-chancellor of a university — Justice Thomas said.
P.H. Parekh, president of the Supreme Court Bar Association, and Supreme Court advocate Gopal Sankaranarayanan backed Justice Thomas’s views.
Parekh and Sankaranarayanan also felt that it would be a demotion of sorts for a former Chief Justice of India to accept a governor’s post.
They drew a distinction between statutory posts like that of the National Human Rights Commission chairperson, which prescribes the incumbent be a former CJI, and a post like a governor’s.
“A governor’s post is really not a very important post for a former CJI, because governors (unlike the rights commission’s chiefs) can be appointed and removed at will by the government,” Parekh said.
“Certainly, the CJI’s post is a very, very powerful and important one. After the various important judgments pronounced by the Supreme Court and important functions discharged by it, it is not proper for a judge to accept a governor’s post because he would be generally under the control of the Union home ministry.”
Parekh too advocated a cooling-off period for retired judges “to ensure transparency, independence and public confidence in the judiciary”.
He, however, felt that “people are reading too much into Justice Sathasivam’s (proposed) appointment as Kerala governor”, highlighting the change of government between his retirement and the reports of his proposed new job.
Sankaranarayanan said the purported proposal was “highly improper and inadvisable and ought to be avoided for two reasons”.
“One, it undermines the independence of the judiciary as the (former) highest judicial functionary will now be reporting to the executive and functioning at the pleasure of the central government,” he said.
Two, it means that “Justice Sathasivam, who as CJI had appointed many judges and would have had the power to swear in the President of India, will now take his oath of office from the Kerala chief justice, a junior.”
Justice Thomas, who had rejected the offer of the National Human Rights Commission chairperson’s job in 2002, said it was eventually an individual judge’s choice whether to accept a particular post-retirement job.
“If such a post is offered to me, I would not accept it — that is my personal view. Any appointment should be commensurate with the work the judge had done in the Supreme Court or high court,” he said.
“I would accept a post considering the experience and knowledge I have acquired through my judgeship.”
Adish C. Aggarwala, chairman of the All India Bar, a lawyers’ body, has written to President Pranab Mukherjee, Prime Minister Narendra Modi and home minister Rajnath Singh against the purported proposal to make Justice Sathasivam a governor.
His letter said the media reports had created anxiety among the legal fraternity as the purported appointment impinged on the judiciary’s image and independence.
“Such a measure would be gravely detrimental to probity in the administration of justice. It will be seen as an inducement by the political executive and will set an unwholesome precedent,” the letter said.