India: Right Yet Wrong, Your Honour

Last Updated: 26 October 2016
Article by Somasekhar Sundaresan

Justice P Sathasivam seems to have a knack for being surefooted and firm in controversial situations. Earlier this year, as chief justice of India, he struck a firm blow against the lackadaisical manner in which mercy petitions are handled. His judgement saved the lives of several convicts on death row. He was not swayed by the "collective conscience" ranged against convicts held guilty of assassinating a former prime minister.

Judges are but human beings, not robots. Societal outrage can seep into any human mind. A good judge stands firm in favour of the law rather than populist notions of justice. The remission of death sentences demonstrated to the world that India has a sophisticated judicial system that does not flinch from the rule of law even under extraordinarily controversial circumstances.

Days ago, taking oath as governor of Kerala, Justice Sathasivam again stood firm. His stance that there was nothing wrong in a former chief justice becoming governor was legally impeccable. There was nothing unique about his appointment to cloud its propriety. However, in the process, he put the image of the judiciary under trial in the court of public opinion. There he erred.

Justice Sathasivam succeeded Congresswoman Sheila Dikshit, who had been nudged out of office barely six months after entering it on the tail of a drubbing in the Delhi State elections. Distraught, the Congress Party made a reckless insinuation, linking Justice Sathasivam's appointment to his judicial decisions in cases relating to the (now) BJP President Amit Shah. The retired judge publicly took the bait thus: "At that time nobody would have expected that Mr Shah would become BJP president. We did not give Mr Shah a clean chit in the case. In fact, I shifted the Sohrabuddin case to Maharashtra. In the very same judgment, the court had given liberty to the CBI to file a supplementary charge sheet against Mr Shah."

This gave the impression of a retired judge so keen on governorship that he would even publicly defend his judicial decisions. It is for a valid reason that judges are required to speak about their decisions only through their judgements. They are answerable only to the rule of law in the courts — not to the court of public opinion. Had he exposed the hollowness of the arguments against his candidature for the governor's office and yet rejected the job offer, he would have scored a big hit for the image of the judiciary.

By publicly clarifying his judicial decision, the retired judge failed to dismiss the insinuation with the contempt it deserved and instead offered a competing interpretation of a judicial view, that too of the highest court of the land.

The idea of any occupant of a high constitutional office taking up a government appointment after retirement can indeed be problematic. But there's nothing unique about the sedate governor's job, which heightens the problem. It's difficult even to envisage any room for conflict between the nature of job of a governor and a chief justice. Many a retired Supreme Court judge is appointed to tribunals, commissions and statutory bodies. The qualification criteria for these offices often require appointment of a retired judge. While these are indeed 'government jobs', the governor is a constitutional authority.

Besides, this is not the first time that a Supreme Court judge has been appointed governor. The chief justice is but a Supreme Court judge. In 1997, retired Supreme Court judge Fathima Beevi was made governor of Tamil Nadu while retired Jammu and Kashmir High Court Chief Justice SS Kang was made governor of Kerala. The then president, Shankar Dayal Sharma, cited their experience and insights into the Constitution as valuable assets. That governor Beevi did not sail smooth in the choppy waters of Tamil Nadu politics and quit her position much like Sheila Dikshit, is a story for another day.

Then there is the rather disingenuous and petty argument that it is shameful for a retired chief justice to be sworn in as governor by a High Court chief justice. Should rank matter, the chief justice of a High Court and a Supreme Court judge are on par. That apart, many an illustrious retired chief justice of India has passed awards resolving disputes in arbitration. These awards can be challenged — in some States it is a District Court, subordinate to High Courts, which can consider such challenges. Decisions of retired Supreme Court judges sitting in tribunals can indeed be challenged in writ petitions before freshly minted High Court judges.

Yet, the role of a governor is hardly one that justifies a retired CJI publicly defending his judicial decisions, breaking with high tradition, and justifying why he should accept the job offer. A recent interview with Sheila Dikshit in the Business Standard tells all: "I had gone there because I had been asked by the party and appointed by the President... Kerala is a beautiful and welcoming state. I enjoyed it... I needed the calm... it was a welcome break after 16 years of hard work... I saw a lot of their dance... their music is very good... I read a lot of books... believe it or not, I even read Daphne Du Maurier's Rebecca again."

Originally published by Hindu Business Line - The Blink, September 13, 2014

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