Justice P Sathasivam as Kerala governor: Why it's a bad sign for Indian judiciary

by Jagdeep S. Chhokar

The appointment of the former Chief Justice of India (CJI), Justice P Sathasivam, as Governor of Kerala started drawing comment from many quarters even from the time it appeared to be only speculation. Over time it turned out to be true. Most of the comments were disapproving of Justice Sathasivam accepting a governorship but there was also some ambivalent opinion without any strong positions on the issue. Then came 4 September, 2014 which kind of became a tipping point.

Newspaper headlines on 4 September were telling. “Kerala politicians need not be apprehensive about my posting as governor, Sathasivam says,” said the Times of India. J. Venkatesan in The Hindu was more specific "We did not give Amit Shah a clean chit: Sathasivam". The Financial Express led with “Ex-CJI is Kerala Governor, jurists say it is 'improper' but he claims 'nothing wrong'”.

There were several things that were "telling" about the headlines. First, a former CJI was defending his actions in public. Second, the defence was not restricted to his post-retirement actions but also to his judicial actions taken during his tenure as the CJI! And third, he was making political statements. And what is “telling” about these? Plenty.

P Sathasivam was sworn-in as Kerala governor. PTI

P Sathasivam was sworn-in as Kerala governor. PTI

Judiciary has a special in our country. The central judicial system is established under Chapter IV (The Union Judiciary), Part V (The Union) of the Constitution, and the state judicial system under Chapter V (The High Courts in the States), Part VI (The States). The Judiciary fully aware of its special status. That is why the Judiciary itself has found it appropriate to articulate what has been called Values of Judicial Life.

In the Conference of Chief Justices held on 3rd and 4th December, 1999 in the Supreme Court premises, a “Restatement of Values of Judicial Life” (Code of Conduct) was unanimously adopted. One of the paragraphs from the preamble to the Statement is worth reproducing in full:

“NOW THEREFORE, on a consideration of the views of the High Courts on the draft, the restatement of the pre-existing and universally accepted norms, guidelines and conventions called the ‘RESTATEMENT OF VALUES OF JUDICIAL LIFE’ to serve as a guide to be observed by Judges, essential for an independent, strong and respected judiciary, indispensable in the impartial administration of justice, as redrafted, has been considered in the Full Court Meeting of the Supreme Court of India on May 7, 1997 and has been ADOPTED for due observance.”

The complete Code of Conduct consists of 16 points, two of which, the 8th and the 9th, are of relevance here. These say “(8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination”, and “(9) A Judge is expected to let his judgments speak for themselves; he shall not give interview to the media.”
What is “telling”, first and foremost, about the headlines reproduced above is that prima facie they violate Values (8) and (9) mentioned above, if not in the letter, definitely in the spirit. Some excerpts from the three news reports whose headlines are quoted above reinforce this conclusion.

First the public defence of his actions. The Indian Express reports “Speaking to The Indian Express over the phone from his native village in Erode district of Tamil Nadu, Sathasivam said, "Since my retirement (on 26 April), I have not accepted any arbitration or done any consultation work for corporates as some other former CJIs are doing. I have stayed in my village to tend to my small farm. I didn’t lobby for the post. There is nothing wrong in accepting it. Sathasivam, who is set to take oath on September 5, said even at the time of his retirement, he had stated that he would accept any position befitting his stature. ‘Any job that is offered to a retired CJI must be befitting the post of CJI. If such a thing is offered, I can consider,’ he had told The Indian Express after his retirement.

It is strange logic that if one has not done what some others have done, it gives the former licence to do whatever one wants.

And what does “befitting his stature” mean? The CJI is ranked sixth (along with the Speaker of the Lok Sabha) in the Warrant of Precedence approved by the President of India whereas the Governor of a state, outside the state, is ranked eight.

The report from The Hindu is almost identical. “Speaking to The Hindu, Justice Sathasivam reiterated that he felt nothing wrong in accepting the post to serve the people of Kerala. He assured them that as a former judge, he would maintain cordial relations with the State and the Centre and work for their welfare. He recalled his farewell speech in which he said he would accept any position befitting his stature. Accordingly, Justice Sathasivam said, he decided to accept the post.”

Now the right value of not entering “into public debate or express his views in public on political matters…” It is difficult to imagine the appointment as governor to be non-political activity. It therefore stains imagination how defending such an appointment cannot be political. Two of the reports cited above testify to the inherently political nature of the issue.

The Times of India report categorically states that “Sathasivam said that politicians in Kerala need not be apprehensive about his posting.” Add to this the observation of a diehard politician such as Salman Khurshid as reported in the Financial Express “Salman Khurshid said Sathasivam should reflect on the correctness of the decision. ‘He should think it over... if he wants to take on the hurly burly of politics, especially in the prevailing political atmosphere and the ongoing controversies,’ Khurshid said.”

Then comes the most valued of the judicial values…that of “speaking judgments”. The tomes that have been written on the art of “writing judgments” are unanimous on the point that “a judgment without reasons is a nullity.” Judgments are supposed to be self-contained documents containing full justification and rationale for the decisions taken. That is why it is said that judgments speak, and should speak, for themselves.

The dictum that follows from this is that “judges do not speak, they speak only through their judgments.” This line of thinking is what presumably must have led to the adoption of the ninth value of judicial conduct: “A Judge is expected to let his judgments speak for themselves; he shall not give interview to the media.” And this is where Justice Sathasivam has slipped most badly…by attempting to give a justification for and a defence for the judgment in the Amit Shah case. He has clearly violated this particular value of judicial conduct.

All the three news reports quoted above have reported this in some detail. Some excerpts are given below.

The Times of India: “The former CJI brushed aside the charge that the Centre had rewarded him with the Governor's post for quashing an FIR against BJP leader Amit Shah in April 2013. ‘We permitted the CBI to file an additional chargesheet in connection with the case,’ he said… ‘Nobody expected that Amit Shah will become a BJP president later,’ he added.”

The Hindu: “He denied that his appointment had anything to do with his judgment quashing the second first information report against BJP president Amit Shah in the Tulsiram Prajapati case in April 2013…’At that time, nobody would have expected that Mr. Shah would become BJP president. We did not give Mr. Shah a clean chit in the case. In fact, I shifted the Sohrabuddin case to Maharashtra. In the same judgment, the court gave liberty to the CBI to file a supplementary charge sheet against Mr. Shah,’ he said.”

The Financial Express: “Asked to comment on the Congress’s allegation that he was being rewarded for ‘pleasing’ Prime Minister Narendra Modi and Amit Shah, Sathasivam said, ‘When we dealt with the case (FIR against Shah in the Tulsiram Prajapati case), nobody knew that he (Shah) would become BJP president. We did not give him a clean chit in the case. In fact, I shifted the Sohrabuddin case to Maharashtra. It is wrong if such an allegation is levelled against a former CJI.’”

The mere fact that such questions have been and are being asked, creates a spectacle that lowers the dignity not only of the office of the CJI but of the entire judicial system in the country.

Another question that arises is whether the oaths of office taken while entering into high offices are valid only while the incumbent is in office? This is where it is worth recalling the words of the famous Justice HR Khanna (1912–2008), the only one to have dissented in the famous Habeas Corpus case during the Emergency (1975-77) and consequently earning Indira Gandhi’s wrath, who referred to “certain higher values which are dear to the human heart and are generally considered essential traits of civilised existence” in his judgment in the landmark Kesavananda Bharati case. One hopes Justice Sathasivam is not unaware of such higher values that form the bedrock of the values of judicial conduct.

And the last bit. Justice Sathasivam has held an office the incumbent of which swears in the President of the country and in the office that he has accepted, he will be sworn in by the Chief Justice of a High Court!

This is not a good augury for the dignity and independence of the judiciary in the country.

Jagdeep S. Chhokar is a former Professor, Dean, and Director In-charge of IIM, Ahmedabad. Views are personal.


Published Date: Sep 07, 2014 08:02 pm | Updated Date: Sep 07, 2014 08:02 pm


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