The former Chief Justice of India, P. Sathasivam, who has now been appointed the governor of Kerala

The order of precedence in India is the protocol list which categorizes the functionaries and officials according to their rank and office in the country. It has been classified into 26 sections in which a serving governor of an Indian state is ranked fourth while he is within the state where he has been deployed, and eighth when outside his state. In contrast, however, the sixth ranked serving Chief Justice of India continues to be at that position, irrespective of his location and position during his tenure in office. In other words, the CJI, who has the whole of India under his jurisdiction, is on a higher pedestal than a governor when the latter is outside his state of deployment.

Thus, during the Republic Day parade at Raj Path or the Independence Day celebrations at the Red Fort, any governor from outside Delhi who is present will be attended to only after the CJI (although this point can be countered with the argument that no governor can possibly leave his or her station on these two occasions). The governor will have to patiently await his or her turn to be greeted or felicitated according to protocol.

This gives rise to an interesting question: what if a CJI becomes the governor of a state soon after retirement? Will it be a proper, ethical move? Will it set an unusual precedent? Will it be ethical? Could there be a potential conflict of interest if some of the relatives and friends of the new governor start getting prominence in judicial institutions, or get appointed as judges in a court falling under the territorial jurisdiction of the governor? Although nothing of this sort exists as of yet to object to, the act of appointing a retired CJI as governor could create avenues whereby the political and judicial atmosphere could get vitiated. This could lead to an unacceptable and mutually hostile situation for both the executive and the judiciary of India in the future. Given these possibilities, should one be amenable to the crossing over of an individual from the judiciary to the executive, as a matter of principle?

Let us visualize another scene. A senior cabinet minister, who stands seventh in the order of precedence — this is just below the CJI and the Speaker of the Lok Sabha, but above the ninth-ranked judges of the Supreme Court — is made to resign from his post, and, after six months, is appointed as a high court or an apex court judge. How well will this be received? Will there not be a clear conflict of interest, what with the executive crossing over to the judiciary? Will it not be a palpably unethical and questionable act on the part of the appointee to be in such a situation?

Since the CJI administers the oath of office to the president of India, it will be a tad strange for a former CJI to be reporting to the home minister as the governor — after all, when he was the CJI, he was a notch above the home minister in the order of precedence. Why would a constitutional expert who has been a former CJI willingly try to demean the status and credibility of the office of the CJI? He ought to know how much the people of India respect the Supreme Court.

Unfortunately, Indian citizens largely do not have the same kind of respect for the office of the governor. Over several decades in the past, Indians must have noticed the unethical manner in which governors of states are sacked or transferred. This is an unhealthy practice that was set in motion a long time ago. It has been in the domain of public knowledge for years. What will happen if a governor of a state who used to be the CJI is asked for a favour by a joint secretary to the Union government (ranked 26th in the order of precedence) or deputy ministers in states (ranked 19th)? Will this not be an insult to the dignity and self-respect of an individual who has held the post of CJI in the past? In the course of his judicial career, a former CJI will have been at the 17th rank in the order of preference as a high court judge, ninth as a Supreme Court judge and ultimately sixth as the CJI. No former CJI should accept the post of the governor of a state. That cannot be the right job for him or her. It would be wrong to be demoted, however sincere the appointee may be.

Governors are appointed from among those retired civil servants and defence officials who were once ranked 11th-26th in the protocol list. Becoming a governor is an extraordinary honour for them. But for a former CJI, the post of governor is unfortunately an undesirable demotion.

What then is the way out of this dilemma? What could be done to ensure that former CJIs, like some retired civil servants and defence officials, do not go to great lengths to secure a gubernatorial post in the future? What is it that attracts individuals from the judiciary towards posts in the executive? Are they unhappy, dissatisfied or disillusioned with the state of things in the country? Do they want to improve the manner in which the executive functions by becoming a part of it?

Perhaps it is time to recognize that an erudite CJI need not retire and then look for a new job if he is still agile and active at 65 years of age. India should follow in the footsteps of some other countries and raise the retirement age to 70 years; individuals should be able to continue in this office further if they are found to be physically and mentally fit. The retirement age of all Supreme Court judges should be raised. Moreover, all of them, including the CJI, should be allowed to draw their date-of-retirement pay and allowances till death; this will ensure that they do not feel the need to look for post-retirement jobs that are unfortunately beneath their stature after having served with distinction as the conscience-keepers of the nation and the custodians of the Constitution of India.