Sathasivam has lost the plot

What signal does appointment of the Chief Justice of India as Governor send? It is an unprecedented move as never before a CJI, after retirement, was chosen for a gubernatorial post. Appointment of Justice Sathasivam, who retired four months back as the Chief Justice of the Supreme Court, as the Governor of Kerala, has evoked sharp criticism in judicial as well as political circles. Most revealing criticism has come from eminent jurist, Fali Nariman. He says: ‘I do not appreciate or approve of the idea of a former CJI, or a judge of the Supreme Court, accepting sinecure appointment, like that of a Governor’.

Nariman further says: ‘Judges seeking jobs or a seat in Parliament from the executive gravely affects the concept of independence of judiciary’. Objecting to Sathasivam’s appointment, former CJI, V N Khare, says, ‘There is no precedent to this. No former CJI has ever been offered or accepted this post. If you create a precedent, it may be followed. But if such precedent is allowed to prevail, then this may open up more political intervention in the coming years’. Senior advocate Rajeev Dhavan observed that Sathasivam’s appointment would be ‘politically corrupt’ if he had sought this favour during his tenure as CJI. ‘If he asked for this position while a CJI, it is venal, and if he did so after his retirement, it is very improper’.  

Nariman’s and Khare’s  observations can be interpreted in many ways. One, according to jurists, could mean that the present dispensation wants to bring under its control the highest judiciary of land by luring it with the post of a high constitutional authority. Judges, after all, are human beings, and are likely to fall prey to the allurements. Every Chief Justice is not an angel or holds moral values above a office howsoever high it may be. Governorship is a political office which retired Chief Justices and even justices should stay away from. Will they?

Justice Sathasivam has, unfortunately, set up a very bad precedent by accepting a gubernatorial post, whatever may be its justification. It is perhaps, too late for him to retract now. It will not be a surprise if henceforth retired Supreme Court judges are seen lobbying with the executive and political leaders for a governor’s post and politicians, on their part will extract their pound of flesh. Where will be then independence of the highest judiciary of the land?

One need not remind the former Chief Justice that governorship is an office under the political executive; that the very home secretary, whom the CJI might have summoned in a court, could call the governor and ask him to put in his papers. There is also a serious problem; when judges, present or past, cosy up to executive, it causes lot of uneasiness. And, when a recently retired CJI is that incumbent, the uneasiness is bound to be much more.  

Justice Sathasivam is an upright judge, known for his integrity, and it is hard to believe that his appointment as Kerala Governor has anything to do with his judgment quashing the second first information report against BJP President Amit Shah in the Tulsiram Prajapati case in April 2013. Justice Sathasivam has been quoted as saying, ‘at that time nobody would have expected that Shah would become BJP President. We did not give Shah clean chit in the case. In fact, I shifted the Sohrabuddin case to Maharashtra’.

On his part, Justice Sathasivam feels there is nothing wrong in accepting the governor’s post to serve the people of Kerala. He held out the assurance that as a former judge, he would maintain cordial relations with the state and the Centre. He recalled his farewell speech in the Supreme Court in which he had said he would accept any position befitting his stature. Accordingly, he accepted the governor’s post.     

It would be useful to look back to earlier times to realize how things have changed. As far back as early 1950s, even Jawaharlal Nehru appointed a retired Supreme Court judge, not the CJI, Syed Fazal Ali, as governor of Assam. Given the tall stature of Nehru and high reputation of Justice Ali, nobody minded although some did suggest to the Prime minister that this should have been avoided.

The BJP-led government, headed by Atal Behari Vajpayee, appointed former CAG, T N Chaturvedi, Governor of Karnataka, presumably because he looked closely at the Bofors scandal during Rajiv Gandhi’s time. The Congress Party, therefore, vigorously protested but its leaders could not find fault with Chaturvedi’s functioning. When in power itself, the Congress appointed a former Chief Election Commissioner, M S Gill, as a member of the Rajya Sabha and then a minister.

Way back in 1967, the then CJI, K. Subbarao, took the extraordinary step to resign and become the presidential candidate on behalf of non-congress parties against Zakir Hussain, only to lose. Many years later, the flamboyant T N Seshan, became the Shiv Sena’s Presidential candidate only to bite the dust. It is time to lay down some principles by consensus from which there should be no departure at all.