Political Diary

New Delhi, 6 September 2014

From Your Lordship To Jee Huzoor

CONSTITUTIONALLY JUST NOT DONE!

By Poonam I Kaushish

Public office has a lot to do with perception. Wherein, your actions do the talking. Alas, last week the blindfolded scales of justice got talked down to when the politicos got embroiled in a slugfest over the unprecedented appointment of former Chief Justice of India S Sathasivam as the 23^rd Governor of Kerala. An onslaught which threatens to undermine the independence and impartiality of the judiciary, a crucial bastion of our democracy. With the devil taking the hindmost!

Who could imagine that the man flashing the Constitution, cracking the judicial whip and doling out unpalatable orders to culprits would one day succumb to political temptation himself? Raising a moot point: Has Sathasivam forgotten his halla bol against the political cesspool, the root cause of corruption? His repeated emphasis on values and integrity? All blown to be tenant of Raj Bhawan?

Moreover, how will his appointment effect the dispensation of justice? Could not millions of litigants think that a judge would be soft on the Administration on the eve of his retirement in the hope of reward?

True, Justice Sathasivam is correct when he asserts there is no Constitutional or legal bar restraining him from being appointed Governor of a State. And neither has he violated protocol. In fact, the Justice Sarkaria Commission on Centre-State relations is spot one when it desired eminent persons being appointed to State Raj Bhawans. Even the Restatement of Judicial values does not bar a former judge from holding another Constitutional office. Neither is a merely an issue of creating a wrong perception.

Yet, it goes beyond this on several scores, from the serious to the mundane. One, it has lead to serious role reversals. Pertinently, a Governor is appointed by the political Establishment and continues to hold office “during the pleasure of the President.” Arguably, the very political class and babudom as CJI he could summon to court can know tell him to resign.

Further, as Governor he enjoys little discretion and has to follow the dictates of the Chief Minister. In one fell stroke the former CJI has blurred the arms length distance between the Executive and judiciary. 

Besides, as Chief Justice of India, Justice Sathasivam was fourth in the order of precedence after the President, Vice President and Prime Minister. Today as Governor he is sixth in the order of precedence. Look at the irony. He was sworn-in by the acting Chief Justice of the Kerala High Court, the judge whom he administered the oath of office.

What Governor Sathasivam doesn’t seem to realize is that by his decision to accept Governorship he has inflicted an avoidable hurt to this important Constitutional pillar. A body blow that would not be easy to recover from. Once the “Conscience Keeper” of democracy falls prey to the political sharks, there is no salvation but a steady slide downhill.

Arguably, by offering Sathasivam a political lollipop, the BJP-led NDA has violated the letter and spirit of the Constitution. Future CJIs might well be more than willing to bend rules in favour of a particular Party in the hope and expectation of reaping political rewards post retirement.

Blame the ex-CJI all you want, but this is not the first time. Over the years our leaders have eroded judicial impartiality without outwardly violating the letter of the Constitution. Trust them to find a lacuna and brazenly and blatantly exploit it. By merrily taking advantage of the “silence” of our Constitution framers.

Recall, Sathasivam’s erstwhile colleagues Chief Justice of India Subba Rao whose veneration for his famous judgments in the Golaknath and Kharak Singh cases got tarnished after his decision to contest for the office of President. And India’s first Attorney General M C Setalvad castigated famed jurist MC Chagla for accepting Nehru’s offer of ambassadorship.

What to speak of ex-CJI Ranganath Mishra who accepted Congress nomination to the Rajya Sabha and Justice Baharul Islam-turned-Congress Lok Sabha MP. Or Punjab and Haryana High Court Chief Justice Rama Jois turned-Governor- BJP Rajya Sabha MP and Supreme Court Judge-turned Congress Rajya Sabha MP-turned Janata Party Lok Sabha MP-turned-Speaker KS Hegde.

Yet again, the country’s first woman Supreme Court judge Justice Fatima Beevi was appointed member of the National Human Rights Commission post her retirement in 1992. In 1997, Beevi was appointed Tamil Nadu Governor where she was in the eye of a political storm over her decision to ignore established Constitutional norms and anoint AlADMK supremo Jayalalithaa as Chief Minister in 2001, notwithstanding she could not contest the Assembly poll due to her conviction in a corruption case.

So unlike the practice the world over. In the US Supreme Court judges are appointed for life. In UK, people cite the example of Lord Denning who opted to practice in the Court of Appeal after his stint in the House of Lords. He went down in the protocol order, but up in respect of Britons.

Sadly, the malaise is not only limited to CJI’s, judges of the Supreme and High Courts but other holders of Constitutional offices such as CAG, CEC and Election Commissioners who wily nily accept post -retirement jobs, political or otherwise or enter politics. India’s second CEC, KVK Sundaram was made the Chairman of the Law Commission on retirement.

More. In the early eighties the Central Vigilance Commissioner RK Trivedi was handpicked and appointed CEC. In 1986 he was rewarded with the Governorship of Gujarat within months of retirement for having served the interest of the ruling Congress in Assam. Former CAG TN Chaturvedi was elected by the BJP to the Rajya Sabha and thereafter appointed Karnataka Governor. So much for upholding Ambedkar’s principles!

I remember a famous anecdote in 2004 when the then ex- Punjab Chief Minister Badal reprimanded former CEC MS Gill for accepting the Rajya Sabha MP-ship from the Congress by underscoring those who held august offices should not contest on Party tickets. Retorted Gill: “Maine koi theka liya sau saal da”.

Clearly, the BJP does not appear to have been well-advised in appointing Sathasivam. This unfortunate decision can only snowball causing grave injury to the system unless the statute is changed to bar Chiefs of Constitutional Offices like CJI, CECs, and CAG etc from accepting further appointment by the Government on retirement.

Plainly, such a step is needed to preserve and protect the independence of the judiciary since nobody seems to care a damn for healthy and time-honoured conventions. This is all the more necessary in view of the “aberration nee pattern” that is slowly but surely seeping into the body politic --- and is certain to receive encouragement from the tragic Sathasivam episode.

Undeniably, the arms-length distance between the Executive and Judiciary along-with mutual respect needs to remain intact even after demitting office. If the arms length is swapped by a warm embrace, it warns of grave danger. 
Can India afford to allow persons holding Constitutional offices to accept “rewards” from the political Establishment after retirement? This does not auger well for the CJI’s post and the future of India’s democracy. ------ INFA

(Copyright, India News and Feature Alliance)