Opinion A matter of propriety

The Constitution-makers wisely conferred (in Articles 155 and 156) the power to appoint governors on the president, who is advised by the council of ministers. They declined to enact rules in this regard and expected that appropriate constitutional conventions would evolve to regulate the discretion of the executive and to serve as principles of political action. In a sense, the public debate is about the executive failure to develop constitutional conventions.

The trouble is that the acceptance of such conventions will set a norm for the exercise of political power; political parties urge conventions when they are in the opposition but are loath to have any restriction when they have a legislative supermajority. As the principal opposition party, the BJP has said several times in the recent past that the executive should refrain from offering judges “plum posts” when they retire. The then leader of the opposition in the Rajya Sabha often articulated this view, on the floor of the House and outside it. Now it suits the BJP’s party spokespersons and officials to point out that the Congress did not feel bound by any constitutional convention. They argue that appointing a retired CJI the governor of a state is a new beginning and ought to be welcomed.

The political debate is always economical with the truth; what matters is party loyalty, controlled by the exigencies of power. And yet this is the stuff of a competitive liberal democracy. But beyond this lies the question of whether a constitutional convention exists, and second, whether it is desirable. It can be argued with some cogency that a constitutional convention exists in relation to the retired CJI and justices of the Supreme Court and high courts: they ought not to be offered any appointment or be actually appointed to executive positions while they are still in office or soon after their retirement.

It is now said that, in the past, CJIs had adorned executive positions. This is true of the 16th CJI. Justice M. Hidayatullah, the 11th CJI, served as the sixth vice president of India, from August 20, 1977 to 1982. However, this was a full seven years after he had demitted his judicial office. The 21st CJI, Justice Ranganath Mishra, too, served the Supreme Court from September 25, 1990, and retired on November 24, 1991; he joined the Rajya Sabha as a nominated member in 1998. With both these justices, the appointment came after a cooling off period. Recently, Justice K.T. Thomas (who retired in 2002 after serving in the apex court for six years) opined that a two-year “quarantine period” from any post should be observed as constitutional convention, except in the case of a judicial inquiry commission.

Opinions stand divided on the issue of whether a constitutional convention ought to exist to confine executive power. Some take an absolutist position, saying that the supreme executive is bound by no convention at all. In this view, justices are competent to discharge any function, including that of governorship. It should be noted that retired CJIs are legislatively determined to be chair of the National Human Rights Commission, as are high court chief justices for state commissions and justices of the Supreme Court for some regulatory tribunals.

Others urge a cooling off period of a few years, primarily because the litigating public may otherwise perceive a lowering of the impartiality of our justices. The independence of the judiciary is also offered as grounds for saying that such a convention ought to exist. This is a good position indeed, until we take into account the internal positions of the concerned justices themselves.

Justice Sathasivam, the epicentre of the present controversy, does not think that such a convention ought to (or does) exist. He says that since April 26, 2014, he has lived a retired life “in my village, to tend to my farm”. He certainly does not believe that being summarily asked to leave as governor or being transferred without cause is unbefitting for a former CJI. Nor does he believe, to modify the saint-poet Mira somewhat: “Jo mein aisa janati/ Preet kiye dukh hoye/ Nagar danhdora peet tee/ Governer na bainyo koye (If I had known/ That love is the cause of all suffering/ I would sound the trumpet/ Be thou not a governor)”.

Even apolitical critics of the present regime may have a point when they say that the supreme executive is slowly but surely tightening its grip on the supreme judiciary by dangling the sword of the National Judicial Appointments Commission Bill and the carrot of new appointments for justices as soon as they retire. Whether or not they are proved right, the crucial Judicial Standards and Accountability Bill that is in the offing will certainly be greeted with suspicion. Would such a bill provide for a cooling off period? The lapsed bill virtually adopted the “restatement of values in judicial life” approved by the court; but did not include any such period. It is time anyway for the Chief Justices’ Conference to take up the issue of a constitutional convention and reinforce a standard for those elevated, stipulating that they should not take public office before a cooling off period of at least a few years.

The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi

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