Judges as governors

There is merit in the first objection, but its logic does not apply to appointments and transfer of high court judges. The Supreme Court has laid down and reiterated that, in the matter of appointments and transfer of high court judges, the primacy lies not with the executive but with the judiciary. There is no reason to keep the present 100 vacancies unfilled because, oncethe Chief Justice has recommended appointment or transfer of a judge, the executive even if it is not a caretaker government has no alternative in law but to accept the recommendation.

However, the practice of the President asking the chief justice of a high court to perform the functions of the governor of a state during the period of a temporary vacancy in the Raj Bhavan concerned does raise basic questions of constitutional conventions. The practice is fraught with serious adverse consequences and alien to the letter and spirit of our Constitution. The Directive Principles of State, by Article 50 of the Constitution, mandate that the state shall take steps to separate the judiciary from the executive in public services. The Supreme Court has approved the observation of Granville Austin who described Article 50 as 8220;the conscience of the Constitution8221; The appointment of a judge to function as an acting governor blurs the theory of separation of powers.

An independent, non-political judiciary iscrucial to the sustenance of our chosen political system. The vitality of the democratic process is dependent on the health of the judiciary. But, in the process of functioning as a governor, a judge cannot avoid proximity and contact with the executive which the constitutional scheme forbids. An embarrassing situation can arise when a chief justice acting as a governor has to assent to an executive decision because he has no choice in law even when he may disagree with the decision. Would it not unnecessarily bring a judge into a political controversy?

The situation can get really ugly. I know of a case where a misunderstanding between a chief minister and the chief justice of a high court acting as the governor resulted in an additional judge of the high court, a relative of the chief justice, not being made permanent for quite some time.

There are quite a few other examples of the politician-judge encounters of the embarrassing kind. The same chief minister had agreed in the past to a former chiefjustice of the same high court to act as the governor, but refused to let the successor chief justice to function as the acting governor of a neighbouring state.

In another instance, the permanent chief justice of a high court in a northern st-ate, who was functioning as an acting governor, relinquished charge overnight. He wanted to go back as the chief justice only to prevent the acting chief justice from recommending a certain name for appointment as a judge in the high court. An emergency meeting of the Union Cabinet had to be called, the Chief Justice of the Supreme Court requested to come back to Delhi in a week and a solution found 8212; appointment of the governor of a neighbouring state as the acting governor.

To make it worse, chief justices have continued to function as acting governors for months and, in one unpardonable case, for over a year because of the close rapport between the chief justice and the chief minister. All this is bound to weaken the functioning of the judiciary. Deprived of theleadership of regular chief justices, appointments get stalled, important decisions are delayed, and the high courts concerned become moribund. Above all, the closeness of the executive and the head of the state-level judiciary create apprehensions in the public mind about the impartial and independent functioning of the judiciary.

There would appear to be no plus side to the utterly unhealthy practice. Recognition of this fact was possibly the reason for the seventh amendment to the Constitution enacted in 1956, empowering the President to appoint the same person as the governor for two or more states. This was a practical solution to the problem that is supposed to warrant drafting of judges as Governors.

Related to the issue is the law enacted by Parliament in 1969 to provide for discharge of the functions of the President in any contingency not envisaged in the Constitution. It says the Chief Justice of India or, in his absence, the most senior judge of the Supreme Court shall discharge thefunctions. All the flaws of the practice of putting judges in Raj Bhavans would apply in this case as well and with even greater force.

What is the practice elsewhere? In Ireland, a commission consisting of the chief justice, the chairman of Dail House of Representatives and chairman of the Senate act for the President. The commission may act by any two of three members. This conveniently leaves an opening for the chief justice, if he is so inclined, to avoid becoming a part of the executive set-up.

In the USA, the position is satisfactory. In the contingency of the President not being able to discharge his functions, there is a list of high constitutional functionaries who are called upon to do so. The first is the Vice-President, followed by the Speaker of the House of Representatives. The Chief Justice of the USA does not figure in the list. There is need for a similar legislation here to insulate the judiciary from political contacts. Meanwhile, the judiciary on its own could impose a self-denyingbut a commendable rule on itself.

Close contacts, developed inevitably du-ring the period of functioning as governors, are not easy to break. The discharge of judicial duties by the chief justice would not suffer in most cases. But why create an unnecessary scope for gossip and disinformation?

The sooner parties agree to dispense with this practice, the better it will be for the independence, democratic functioning, and healthy development of the judiciary. The practice runs counter to the principle that, like Caesar8217;s wife, the judiciary should not only be above suspicion but seen to be so.

The writer is a former Chief Justice of the Delhi High Court