Thursday, February 22, 2024

When judges start governing

Rishav Sharma and Prabhash Malik

It is true that for a dynamic democracy, no foundational institution should escape public scrutiny. This has been pointed out by American Jurist Simon Rifkind, who wrote, ‘‘the courtroom, sooner or later, becomes the image of the judge. It will rise and fall to the level of the judge who presides over it’’.

But it is not only the presiding judges but also the judges who demit office and what they pursue thereon that creates the image of the judiciary as an institution in the eyes of the vox populi. The controversy surrounding the elevation of Justice Victoria Gowri as an additional judge to the Madras High Court has flared the debate of judicial opacity. Following this, the appointment of the former Supreme Court Justice Abdul Naseer as the Governor of Andhra Pradesh has fuelled the debate surrounding the independence of the judiciary vis-à-vis the executive.

Former Justice Abdul Naseer assumed office in February 2017 and retired after half a decade of service. He had been a part of several important constitutional benches that included unanimously upholding the Ayodhya land dispute, upholding the decision of demonetisation, and upholding the practice of Triple Talaq is in consonance with Islamic Sharia law. 

The appointment of Justice Nazeer as Governor of Andhra Pradesh has caused many to put pen to paper. In past, the 46th Chief Justice of India, Ranjan Gogoi was nominated to the Rajya Sabha four months after demitting office. Similarly, Justice Ashok Bhushan, who retired in 2021, was appointed as the chairperson of the National Company Law Appellate Tribunal two months after demitting office.

The appointment of justices at retirement is an imminent threat to the independence and the image of the judiciary. Since the appointment of chairman is made by the central government the line of difference between the executive and judiciary overlaps each other, especially when the government is the litigant in several matters. In 2019 while hearing a matter where the Amendment to the Finance Act was challenged. The then CJI Ranjan Gogoi had grilled senior advocate, Arvind Datar, who pressed for the need of appointment of retired judges to tribunals.

Justice Gogoi made a stark comment pointing at the appointment of justices in specialised tribunals ‘there is a saying that post-retirement appointment is itself a scar on the independence of the judiciary’. The Constitutional Bench comprised for adjudicating the oldest and the most sensitive Ayodhya land dispute was decided by the above-named Hon’ble Justices. Such incidents bring unsavoury reputations to the guardians of the Constitution. 

Several Law Commission reports have reiterated the act of taking up an executive position as compromising with the stature and independence of the judiciary. The 14th Law Commission on ‘Reforms of Judicial Administration’ Chairman M.C Setalvad had recommended the abolition of post-retirement employment in government. In 2014 the Chairman of the Law Commission, Justice A.P Shah in 2014 had recommended a minimum of 3 years cooling period. However, like most other recommendations for reforms, the stakeholders have been dilatory in acting upon it. 

In the past, thrice Supreme Court Justices have been appointed as Governors in states. Starting from Justice Faizal Ali in 1952, Governor of Orissa and subsequently of Assam. Justice Fatima Beevi, the first female justice of the apex court was appointed as the Governor of Tamil Nadu in 1997. Justice P Sathasivam, the 40th CJI was appointed as the Governor of Kerala in 2014.

This was the first time that CJI had been appointed as the Governor of a state. However, the critics pointed out that Justice P Sathasivam quashed the chargesheet against Amit Shah in the Sohrabuddin encounter case. With utmost honour, the deduction of the Hon’ble Justice was based on the principles of criminal justice and his tenure as the Governor was well within the constitutional bonds. But the fact that the acting CJI was given a Constitutional post compromises the stature of the judiciary.

The role of the Governor is being considered for being evaluated as a slew of controversies has mushroomed. It has been alleged that the Governors have been overreaching in administrative affairs. Many political parties have alleged the position of Governor has been strategically employed by the current regime to interfere with the working of states not administered by the incumbent political party. Amidst a pressing demand for evaluating the position of Governor in a Parliamentary and quasi-federal democracy which suggests the position to be ceremonial is used alternatively as a political pawn.

The tussle between Arif Mohammed Khan and the LDF government in Kerala had escalated to such that in the State Assembly a Bill has been passed against the Governor to deprive him of his position as a Chancellor of State Universities after he had ordered 11 Vice Chancellors to tender their resignation. The appointments of Lt. Governors in the UTs and states having political affiliation with the BJP has created an environment of mistrust in a constitutional position.

The appointment of Administrator of Lakshadweep Praful Khoda Patel, a close associate of India’s prime minister was vehemently opposed by all across party lines. He too holds the position of administrator at Daman and Diu, and Dadar and Nagar Haveli.

The forefathers of the Constitution had not perceived the position could be abused. As Babasaheb Ambedkar had pointed ‘His place in the administration is that of a ceremonial device on the seal by which the nation’s decisions are made known’. Therefore, it is important that the appointment of Governor shall be a transparent process whereas its appointment shall be screened by an all-party committee of Rajya Sabha to eliminate political favouritism. Along with a clear guideline for the Governor on the use of its discretionary power under Art. 163(1) of the Indian Constitution. This would require the attention of the legislature to the particular subject. In such political rigmarole, the inclusion of retired judges in such positions could potentially besmirch the judiciary. 

There is a pressing need to regulate post-retirement government appointments to insulate the independence of the judiciary. Since there is no respite from the legislature, the Judiciary shall take the matter on its own shoulder by laying down guidelines for itself till the legislature enacts the same. Justice V.R Krishna Iyer had remarked in UOI vs Sankalchand Himmatal Sheth that ‘Judges committed to uphold the founding faiths… has to act headless of executive hubris, socio-economic pressure and die-hard obscurantism. This occupational heroism, professionally essential, demands the inviolable independence woven around the judiciary by our Constitution’.

To conclude, Justice Naseer must renounce his title of Governorship for sake of the Judiciary to which he has given his sweat and blood for almost half a century.

Rishav Sharma and Prabhash Malik are legal practitioners based in Delhi.

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