Intro: Sudheeran huffed after Palaniswamy Sathasivam replaced Sheila Dikshit at Raj Bhavan in Thiruvananthapuram, Constitutional experts should analyse whether it is proper to appoint a former Chief Justice of India as the Governor of a state.
Really? Arguably, there cannot be a group possessing greater expertise in that arcane field than those who crafted the Constitution. My friend Sudheeran will be delighted (I hope!) to know that the subject of jobs for judges after they retired from the Bench arose in the Constituent Assembly on Tuesday, 24 May, 1949, as part of a larger discussion on the judiciary.
Jawaharlal Nehru, Ananthasayanam Ayyangar, HV Kamath and Jaspat Roy Kapoor sought an amendment saying: “No judge of the Supreme Court shall be eligible for further office of profit either under the Government of India or under the Government of any State after he has ceased to hold his office.” K Santhanam even suggested retired judges be barred from any office in private companies such as Chairman of the Board of Directors” — without the “express permission of the President.”
Dr Ambedkar specifically foresaw instances where retired judges would be given other tasks, pointing out that a former justice, Srinivasa Varadachariar, was even then chairing the Income Tax Investigation Commission. When Jaspat Roy Kapoor suggested that this was ‘in an honorary capacity’, the Law Minister bluntly responded, ‘No, he is paid. It is an office of profit.”
Adding that there was “hardly any chance of influencing the judgment of the judiciary,” Dr Ambedkar concluded, “I therefore suggest that the provision suggested is not necessary and I oppose all the amendments.”
It is not as if the Constituent Assembly never discussed the possibility of former justices accepting an office of profit (or any other job). They debated it, and they rejected it on Dr. Ambedkar's express recommendation.
The core of the issue is not whether someone held a specific office before being appointed to another post but whether high Constitutional functionaries — the President, the Chief Justice and his brethren, the Comptroller & Auditor General, the members of the Election Commission, Governors — are ‘outside political affairs of this type’.
Does the president of the Kerala Pradesh Congress Committee really want his party to be judged by Pandit Nehru's standard? Actually, without going back too far in time, let us look at three Governors intimately connected with Kerala itself.
Sheila Dikshit was appointed Governor of Kerala almost literally at the stroke of midnight. Was it because the Manmohan Singh ministry had heard that the Election Commission was about to notify the schedule for the sixteenth General Election just hours later on March 5, after which fresh appointments would have been problematic?
Consider, for instance, the case of S. K. Bhatnagar, Defence Secretary when the Bofors deal was inked. In 2002 a C.B.I. special court opined that there had been “a serious flaw in the procedure adopted by S.K. Bhatnagar as Chairman of the Negotiating Committee as a result of which objectivity and impartiality could not be observed”. It was too late to question — leave alone prosecute — Bhatnagar, who had died in August 2001.Why hadn't the C.B.I. talked to him when the trail was still fresh, fifteen years earlier? Because the Rajiv Gandhi regime had made S. K. Bhatnagar the Governor of Sikkim — and that meant he was effectively immune from investigation.
Three key officials involved in that decision were MK Narayanan (then National Security Advisor), BV Wanchoo (Head of the Special Protection Group), and ESL Narasimhan (Director of the Intelligence Bureau). All three were appointed to gubernatorial office, MK Narayanan to West Bengal, BV Wanchoo in Goa, and ESL Narasimhan in Andhra Pradesh.
Accepting without question that none of these three gentlemen participated in any scam, their appointment proved to be a road-block in the investigation. Is P Sathasivam a politician caught between two elections? Does the CBI seek his assistance in any scandal? Is there — this was VM Sudheeran's larger issue — anything in the Constitution that prevents any retired judge from accepting any office?
I have no idea how P Sathasivam shall perform as Governor. What I do know is that there was no scandal attached to his name in eighteen years as a judge, in the Madras High Court, in the Punjab and Haryana High Court, and finally in the Supreme Court, nor any hint of political ambition. Can VM Sudheeran make the same claim for Congress appointees?
It may be a long way from Delhi's Tilak Marg to Thiruvananthapuram's Raj Bhavan but there is no red signal in the Constitution.
-TVR Shenoy (The writer is a senior columnist)