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Undoing an ugly optics

Amid the optics of independent institutions buckling under political pressure, governors must stand firm in their individual capacity to retain the sanctity of the apolitical office

Undoing an ugly optics
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The President of India appointed 12 names for gubernatorial appointments, many of them deeply partisan individuals. The appointment of a couple of former combatants in sensitive areas of Arunachal Pradesh and Ladakh was cheered across the partisan divide owing to their befitting credentials and expected apolitical conduct that behoves natural constitutionalists in the ‘Uniform’. However, there was one specific appointment that raised hackles, albeit of a highly successful professional from the judicial services (again, with mandated apolitical anchorage). The context here is important to understand the dissonance in his specific case.

A fair question can be as to why the same assumption of apolitical conduct that is afforded to Veterans is not extended to the individual from the judiciary. The answer is not simple but let’s start with the lay of the land and the dangerous possibility of quid pro quo that is imaginable in one case, and not so in the other. Firstly, the domain of defense services and security, in general, is not directly linked to the interests of electorally driven politicians. Though it is true today that even matters of security and the imagery of the ‘Indian Soldier’ is regrettably sought to be usurped and appropriated under partisan colour, by and large, the barracked world of cantonments, LOC and ‘forward areas’ is not (and ought not) to be a matter of electoral concerns. However, nothing is more in direct contact or consequence with the politicians than the judiciary and its adjudications, interventions, and decisions on what is constitutionally right or not.

The other plausible institutions of checks-and-balances like law enforcement agencies have already been tamed. With a scenario of an absolute majority in Parliament, beholden institutions of checks-and-balances, and an increasingly questionable status of media freedom, it is only the judiciary that stands out as an institution that could posit contrarian opinions with its constitutionally upright stance, to stop portents of reckless partisanship, majoritarianism or authoritarianism.

Videos with the same concern by the late though thoroughly distinguished lawyer, politician and even Law Minister, Arun Jaitley, is extremely prescient when he forewarns, “pre-retirement judgements are influenced by post-retirement jobs…it is a threat to the independence of the judiciary”. Earlier, Arun Jaitley had expressed concerns with the conduct of the first-ever Supreme Court judge to hold a gubernatorial position i.e., Fathima Beevi, where he believed that she had conducted in a partisan manner as opposed to that of a constitutional representative of the Union Government. Though, within months of forming the government themselves, Arun Jaitley’s own political persuasion was to appoint the second Supreme Court judge (Chief Justice), Palanisamy Sathasivam, as a gubernatorial appointee. Beyond the much-discussed induction of the then-recently retired Chief Justice Ranjan Gogoi into the Rajya Sabha after having presided over some significant judgements – this appointment is only the third instance (with the last two coming from the current dispensation) with him too having presided over important judgements (along with other judges) that were widely seen to be in favour of the government stance.

Governance in democracies is often about managing perceptions and optics, herein both the context and timing of certain governmental decisions are relevant. Importantly, this necessity of perception management is often about managing perceptions of those who feel aggrieved and concerned and therefore usually in opposition – it is the deliberate invocation of the spirit of careful co option, reassurance and outreach that won over many insurgency movements in India’s seventy-five years of independence, and not the spirit of muscularity, majoritarianism and bluntness. Growing murmurs of unprecedented partisanship of various governmental institutions and compromise of constitutional offices of checks and balances are further impacted by the accompanying suggestions, inherent in this appointment. The fact there were well over 30 gubernatorial appointees and only a handful had remained in the limelight with their inelegant and no-holds-barred barbs with Chief Ministers (in opposition-run states), and the one amongst this select few was elevated to the post of Vice President, suggests something about the governmental expectation from this supposedly apolitical office!

Ultimately it is up to the individual, irrespective of her/his background to demonstrate apolitical and above-board constitutionality once they assume a constitutional post like Governorship. Many seasoned and dyed-deep in ideological colours have adorned the Raj Bhawan/Raj Niwas and yet ensured the most unbiased and constitutionally correct conduct, thereafter. The gubernatorial appointee in current question too has had a distinguished career as a Judge of the highest court in the land – an office so important that it is not even held at the ‘pleasure’ of the President, above all would know the sensitivity and genuineness of the concern getting expressed at his appointment. For a reason his previous office as Judge of the Supreme Court was insulated from partisanship with measures like Articles 121 and 211 that disallow legislature from discussing the conduct of Judges, disabling Parliament from curtailing powers and jurisdictions of Judges, mandating both houses' approval before impeaching Judges etc. In short, the judiciary was protected from political pressures.

This ensured the healthy ‘distance’ and power to disagree where Judiciary felt the government or any other individual was compromising Constitutionality. Towards the importance of optics, judges engaging even socially (let alone professionally) with politicians was frowned upon. It is that sacred space and duty at ensuring the checks and balances between the executive and judiciary that gets naturally questioned with this appointment. An important point to ponder is if this recent appointment has strengthened the healthy ‘distance’ (read, independence of the judiciary) between executive and judiciary or if it has strengthened the connection between what Arun Jaitley alluded, “pre-retirement judgements are influenced by post-retirement jobs”?

Now that this appointment is fait accompli in many ways, it is up to the consciousness of the individual concerned to allay fears, and disprove the optics and even bipartisan concerns of the diminishment of all institutions by all governments since independence. History, circumstances, and optics make the task extremely difficult for the appointee, though not impossible.

The writer is a former Lt Governor of Andaman and Nicobar Islands & Puducherry. Views expressed are personal

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