‘Lordship’ to ‘Excellency’

In 1959, just a year or so ahead of his impending retirement on attaining 60 years of age, M.C. Chagla, the legendary Chief Justice of Bombay High Court, resigned from office to accept the Government of India’s offer to be its ambassador to the United States of America.

The Law Commission of India, headed by attorney-general M.C. Setalvad, had just recommended that judges of higher judiciary should not accept any government job after retirement. Chief Justice Chagla, as a member of the commission, was a signatory to that report. Setalvad later commented in his autobiography that the ink of Chagla’s signature was yet to dry when he took up the plum posting.

Former Chief Justice of India P. Sathasivam, who is about to be sworn in as the Governor of Kerala, will be the second Chief Justice in India’s history to migrate from “Lordship” to “Excellency”. But Chagla was unique. In his case there was not even a hint of accusation of reward by a grateful government. In fact, Chagla was distinctly disliked by Prime Minister Jawaharlal Nehru for his stinging report on the then sensational Mundhra scandal that targeted several biggies in his government, including finance minister T.T. Krishnamachari.

But Chagla, who had in the past declined invitations to be a judge of the Federal Court of India and thereafter the Supreme Court of India, was too precious to be confined to the archives, and Nehru was too much of a patriot to be dictated by personal prejudices. Despite the Chagla precedent, during the half a century plus that has elapsed, no other judge was invited to emulate him.

The Constitution of India prohibits post-retirement jobs to many officers. For example, under Article 148, the Comptroller and Auditor General is prohibited from taking up any job. So is the chairman of the Union Public Service Commission under Article 319. The Central Vigilance Commissioner is also not eligible for reappointment. All of them retire at the age of 65 — the same age as prescribed for a judge of the Supreme Court.

On June 7, 1949, while discussing high courts under the new Constitution, prominent members of the Constituent Assembly, like Prof. K.T. Shah and H.V. Kamath, wanted to introduce a new article that read: “Article 193-A — No person who has been a judge of the Supreme Court, or of the Federal Court or of any high court — shall be appointed to any executive office under the Government of India or the government of any state under the Union”.

The article even listed these “executive offices”, which included ambassadors and ministers among others. The proposal was rejected. The only bar placed on judges was on their legal practice post-retirement — a judge of the Supreme Court is not permitted to practice before any court or tribunal, while a judge of the High Court can only practise in high courts (except the one where he was judge) or the Supreme Court.

There is no prohibition on them being appointed to any office under the Government of India. In fact, Parliament, while enacting the National Human Rights Commission Act in 1993, reserved the post of its chairman for a former Chief Justice who would hold office until he attains the age of 70. Similarly, former judges of the Supreme Court are to be members of that commission. These are, of course, not automatic postings or grants of favour — the selection process involves the Prime Minister, the Leader of the Opposition and others.

The march of judges from the judiciary to the executive began in 1968 when, as sitting Chief Justice of India, Subba Rao was approached by political parties to be a candidate for the election to the office of President of India. He consented, resigned, contested and lost. In 1970, retired Chief Justice Hidayatullah was asked to be a candidate for the office of vice-president by the ruling party. He was elected and held that office for a full term.

Justice K.S. Hegde, who resigned as a judge of the Supreme Court in protest against his supersession in 1973, got elected as a member of Lok Sabha and became its Speaker in 1977. Justice Krishna Iyer, who was a minister in Kerala before becoming a judge, was an unsuccessful presidential candidate in 1987.

Former Chief Justice of India Ranganath Mishra was chosen as a candidate of a political party from Orissa to be a member of the Rajya Sabha, and before him a sitting judge of the Supreme Court, Justice Baharul Islam, was chosen as the Rajya Sabha candidate by a party from Assam.

The equally important constitutional office of the Chief Election Commissioner of India was compromised when M.S. Gill, on retirement, became a Rajya Sabha MP of a political party and held the office of a minister of state in the Central government.

Choosing a former or a sitting judge to be a member of the Rajya Sabha or the governor of a state is a brazen announcement that opportunities await those who behave well. To be a Governor only two qualifications are prescribed under the Constitution — that s/he must be a citizen of India above the age of 35. About 80 crore Indian citizens are eligible to be governors, but the appointment is used as a political return-gift to congenial geriatrics.

Most governors retire at the end of their term peacefully and are never heard of again. But if the Central government changes during their term, they may face the ignominy of being asked to resign or to be sent off to a less “significant” state because there may be occasions during their tenure when they have to discharge their constitutional functions, especially in the event of a breakdown of constitutional machinery. The Governor then has to send a report to the Centre and recommend action.

If that happens in the case of a judge-turned-Governor, the Governor’s report will be discussed and dissected and will undoubtedly lead to retrospective research on his tenure as a judge, and that will surely harm the judiciary.

Already there are newspaper reports alleging that Justice Sathasivam is being rewarded by a grateful government — the judge has denied this allegation and he may be right. But the judiciary is too significant and sensitive an institution to be made to undergo agni pareeksha. It must not be put in situations where its integrity and honour are up for scrutiny. Public confidence is its lifeblood. Even occasional suspicion of impropriety is all that is needed for it to curdle. Ban or no ban, discretion must guide one’s conduct. Those who live off the judiciary must also live for it.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India.

He can be reached at knbhat1@gmail.com