The political sparring over the appointment of former Chief Justice of India P Sathasivam as Kerala Governor is of far less importance than the larger issue — namely, whether it was appropriate for someone in his position to accept a gubernatorial sinecure. Also, what do such appointments mean for judicial independence? Unfortunately, these important questions have been clouded by political charges and counter-charges. For example, there has been the nasty and unsubstantiated insinuation that the appointment was a quid pro quo for judgments delivered. And the embarrassing but somewhat irrelevant ‘charge’ that a senior minister in the Union Cabinet had publicly declared he was of the view that judges should be ineligible for appointment by government to post-retirement jobs. The Government’s defence — that Congress-ruled governments have also placed members of the higher judiciary to gubernatorial office — is a retort that only skirts the larger issues relating to his appointment.

A few things need to be got out of the away to begin with. First, no procedural rules — no, not even norms — were breached in appointing Justice Sathasivam as Governor. Second, although this is the first time that a former CJI has been appointed Governor, consistency demands that anyone who argues that it will compromise the independence of the judiciary, in public perception if not in fact, must object to the many appointments of members of the higher judiciary to gubernatorial office. Yes, it is true that nobody had imagined that a former CJI would accept being a governor, but Sathasivam’s appointment draws attention to a larger problem — the urgent need for norms to govern post-retirement appointments for members of the higher judiciary.

Theoretically, the prospect of a post-retirement job has the potential to influence the pre-retirement conduct of a judge. A total ban on retired members of the higher judiciary taking up other assignments is unpractical. We have retired judges appointed to tribunals and commissions of inquiry; moreover, a statutory body such as the Press Council of India has by convention been chaired by a sitting or retired Supreme Court judge. But there is a difference between calling upon retired judges to perform quasi-judicial functions — where there is room for independence in decision-making — and appointing them as governors. A governor, despite being the constitutional head of a State, is an employee and agent of the Centre. India’s democracy is predicated on an arms length relationship maintained between the Government and the judiciary. This distance is impossible to maintain in an environment in which judges are appointed in what are broadly political capacities — whether as governor, minister, or mere MP. The Election Commission has gone so far as to suggest that there be a cooling off period for all bureaucrats before they even enter party politics. One may quibble about whether this is too stringent and constrictive, but the principle behind the suggestion is hard to contest. We need some rules or norms that insulate the bureaucracy and the judiciary from the temptation of certain kinds of post-retirement ‘benefits’.

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