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.
As I wrote in my essay in the August issue of The Caravan, the constituent assembly’s members grappled at greatest length with the question of how to ensure an independent judiciary. “At first glance,” wrote the historian Granville Austin who chronicled the framing of the Indian constitution, “the Assembly’s debates on the Judicial provisions seem to have been disproportionately concerned with the administrative aspects of the judicial system.” But the heightened discussion on these seemingly routine issues—which concerned judges’ tenure, salaries, allowances and so forth—were prompted, as Austin observed, “by the desire to insulate the courts from attempted coercion by forces within or outside the government.”
Yet, while the significant attention that was placed on what appeared to be mundane concerns was well merited, the assembly was decidedly against barring judges from taking up executive appointments post retirement. On 7 June 1949, in a meeting of the constituent assembly, one of its members, Professor KT Shah moved a motion, which, if passed, would have prohibited judges of the Supreme Court or of any of the high courts, who had served for five consecutive years on the bench, from being appointed to any executive office, including the office of an ambassador, minister, plenipotentiary, or high commissioner, as well as of a minister in the government of India or under the government of any state in the union.