During a short period of just over 100 days, there have been many unseemly fights between the triumphant Modi Government and the badly battered Congress Party. Of these, arguably the ugliest was that over the removal and appointment of governors. The Congress, which on returning to power in 2004 after eight years in the wilderness, had immediately sacked four members of the Sangh Parivar happily ensconced in palatial Raj Bhavans, raised hell when the BJP government started to repay the compliment in kind by telling Congress-appointed political governors to pack up and leave. There was, however, a difference in the two situations which the Congress tried to exploit, but to no avail.
At the time of the Congress high-handedness, there was no judicial pronouncement on the subject of gubernatorial appointments and removals. So a BJP activist filed a public interest litigation (PIL) in the Supreme Court , which ruled that no governor could be dismissed merely because he had lost the confidence of the union government or was “out of sync with its policies.” There had to be solid reasons for a governor’s removal. Only then the President should “withdraw his pleasure.” No amount of harping on this theme helped the Congress, however.
For, the BJP government, enjoying a comfortable majority in the House, used the weapon of transfer against those unwanted governors who were not yielding to behind-the scenes pressure. There isn’t and cannot be a legal ban on transfers.
It is all the more depressing and deplorable, therefore, that after having won the battle, the Modi Government has muddied the waters by appointing former Chief Justice of India, P Sathasivam , who retired only four months ago, as governor of Kerala in place of Sheila Dikshit, who resigned only the other day. Her earlier stand was that she would not quit. Why she has changed her mind is not known.
Others, including the president of the All-India Bar Council, Adish C. Aggarwala, have pointed out that the appointment contravenes the government’s duty to preserve the judiciary’s independence, and sets a bad precedent. Former chief justices have surely held chairmanship of the National Human Rights Commission or the Law Commission which are judicial in nature. Governorship is a political office which retired chief justices and even justices should stay away from. It has also been argued that the CJI administers the oath of office to the President. He should not therefore accept an office that is subordinate to the President, and for which the oath is administered by the chief justice of a state high court.
The principle behind the demand that not only CJIs, but also holders of some other constitutional offices, such as the Comptroller and Auditor-General or the Chief Election Commissioner, must not be given any job after retirement is very sound, and must be upheld. However, such is the hatred between the Congress and the BJP that the former has converted the principle into a personal attack on Sathasivam. A former Congress minister, Anand Sharma went so far as to insinuate that the Modi government was showing a favour to the ex-CJI because he had once headed a bench of the apex court that had quashed an FIR against Amit Shah, Modi’s Man Friday and now the BJP president, and given him bail.
This is ridiculous and mean. Sathasivam’s reputation for integrity is shining. If he headed the bench that gave bail to Shah, the same bench had granted bail to the Congress’ convicted ally, Lalu Prasad Yadav. In another remarkable judgement, a bench headed by Sathasivam had acquitted a Pakistani charged with murder and allowed him to go back to his country.
It would be useful to look back to earlier times to realise how things have changed. As far back as early 1950s, even Jawaharlal Nehru appointed a retired Supreme Court judge, not CJI, Syed Fazal Ali, as governor of Assam. Given the tall stature of Panditji and the high reputation of Justice Ali, nobody minded, although some did suggest to the Prime Minister that this should have been avoided.
The BJP-led government, headed by Atal Behari Vajpayee, appointed former CAG T N Chaturvedi governor of Karnataka, presumably because he had looked closely at the Bofors scandal during Rajiv Gandhi’s time. The Congress Party therefore protested vigorously. But it could find no fault with Chaturvedi’s functioning. When in power, the Congress itself had appointed a former Chief Election Commissioner, M S Gill as a member of the Rajya Sabha first, and then as a minister.
This is not all. Way back in 1967, the then CJI, K. Subbarao, took the extraordinary step of resigning and becoming the presidential candidate on behalf of non-Congress parties against Zakir Husain, only to lose. Many years later, the rather flamboyant CEC, T N Seshan, became the Shiv Sena’s presidential candidate only to bite the dust. It is time to lay down some high principles by consensus from which there should be no departure at all.