Governor post as precedents show, is at the mercy of Executive: experts

With the former Chief Justice of India (CJI) P. Sathasivam being appointed as Kerala Governor, a new dimension has been added to the debate on judicial autonomy and accountability, with legal experts, including two former CJIs, The Hindu spoke to divided over whether creating such a precedent may adversely affect the standing of the judiciary.

It is for the first time a former CJI is being appointed to a gubernatorial post.

Justice Sathasivam, while demitting office in April 2014 as CJI, had said the collegium system of judicial appointments was “preferable” to a National Judicial Commission.

“I can only say my personal opinion. Had I been offered, I would have refused,” Justice V.N. Khare, a former CJI, said over the phone on Sunday.

The other former CJI, who preferred to remain anonymous, when asked what his choice would have been had he been offered Governor’s post, said that “standards differ.”

Sources in the judiciary and legal profession say the appointment of a Governor is dependent on “Executive patronage.” They say the Governor, as precedents only too recently show, is at the “mercy of the Executive.”

The Chief Justice of India is fourth in hierarchy after the President, Vice-President and the Prime Minister, they point out. A former CJI can be considered for President and Vice-President as they both are “elected offices”.

They say a Governor, who is an “Executive nominee,” is on a different footing when compared with other post-retirement appointments like NHRC chairperson and Lokpal for former CJIs. The latter, they say, is a mandatory eligibility requirement prescribed in the respective statutes.

But Justice Sathasivam on Sunday told The Hindu that there was nothing wrong in accepting a Constitutional post after retirement. He said: “The question of breach of protocol in accepting a lesser post of a Governor would not apply to a retired CJI.” The role of Governor was limited and was an opportunity to serve the people. “Several former CJIs are doing business by indulging in arbitration and consultancy. I have not accepted any commercial work for the last four months,” he said.

He said that former CJI Ranganath Misra was a member of the Rajya Sabha. He added that some former chief justices of high courts have functioned as Law Ministers.

K.T.S. Tulsi, constitutional expert and nominated member of the Rajya Sabha, said Justice Sathasivam’s appointment would in fact “elevate the office of the Governor”. “There is a huge debate about the advisability of having politicians as Governors. Then we need to have distinguished persons who have some mastery of the Constitution, who can deal with a Constitutional crisis. Who is better than a former CJI? And one such appointment cannot be called a trend. If at all, this is a healthy trend,” Mr. Tulsi said.

But eminent Supreme Court advocate Anil Divan disagrees. He said the very “appointment of a Governor is done in the patronage of the Executive.” Advocate Prashant Bhushan agrees that such appointments are “not at all appropriate.”

(With additional reporting by J. Venkatesan)