On Friday, P Sathasivam, who retired as chief justice of India on 26 April, was sworn in as the governor of the state of Kerala. Although there is no bar against the selection of a former judge to a gubernatorial position, the appointment raises significant questions that strike at the heart of the independence of the judiciary.
The Congress, sitting in opposition, has alleged that Sathasivam’s selection is an act of reward—the judge presided over a bench last April that quashed a First Information Report implicating the BJP president Amit Shah in a fake encounter case in Gujarat. This blustering from the Congress might not contain any truth. But it also takes little away from the issues of propriety that arise when a recently retired chief justice joins the executive.
The independence of the judiciary was considered by the framers of India’s constitution to be of paramount importance chiefly because the functioning of an effective democracy required judges of the higher judiciary to remain free of any political influence. In the case of Indian democracy, this is particularly so, as the constitution vests in the country’s judges an enormous power. The Supreme Court of India and the high courts act as the final arbiters of constitutional disputes, and can overrule not merely ordinary law enacted by a legislature that enjoys popular will, but, after the Kesavananda Bharati case, also constitutional amendments, which in the courts’ view infract the “basic structure” of the constitution. The institutional integrity of the judiciary, therefore, requires the courts to enjoy the confidence of the public; society needs to see judges as bastions of justice, who will stay independent of government to uphold the people’s most fundamental rights.