'Judging by the conduct of two governors of Kerala and one governor from Kerala, Congressmen treated Raj Bhavan as a transition point before taking a flight back into active politics,' says T V R Shenoy.
Constitutional experts,' V M Sudheeran huffed after Palaniswamy Sathasivam, left, replaced Sheila Dikshit at Raj Bhavan in Thiruvananthapuram, 'should analyse whether it is proper to appoint a former Chief Justice of India as the Governor of a state.' Really?
Arguably, there cannot be a group possessing greater expertise in that arcane field than those who crafted the Constitution. My friend Sudheeran will be delighted (I hope!) to know that the subject of jobs for judges after they retired from the Bench arose in the Constituent Assembly on Tuesday, May 24, 1949, as part of a larger discussion on the judiciary.
The participants in the debate included Jawaharlal Nehru, Ananthasayanam Ayyangar, and H V Kamath. Jaspat Roy Kapoor sought an amendment saying: 'No judge of the Supreme Court shall be eligible for further office of profit either under the Government of India or under the Government of any State after he has ceased to hold his office.'
K Santhanam even suggested retired judges be barred from any 'office in private companies such as Chairman of the Board of Directors' without the 'express permission of the President.'
I would like to quote from Dr B R Ambedkar's response: 'The judiciary decides cases in which the Government has, if at all, the remotest interest, in fact no interest at all. The judiciary is engaged in deciding the issue between citizens and very rarely between citizens and the Government. Consequently the chances of influencing the conduct of a member of the judiciary by the Government are very remote, and my personal view, therefore, is that the provision which are applied to the Federal Public Services Commission have no place so far as the judiciary is concerned.'
Dr Ambedkar specifically foresaw instances where retired judges would be given other tasks, pointing out that a former justice, Srinivasa Varadachariar, was even then chairing the Income Tax Investigation Commission.
When Jaspat Roy Kapoor suggested that this was 'in an honorary capacity,' the Law Minister bluntly responded, 'No, he is paid. It is an office of profit.' Adding that there was 'hardly any chance of influencing the judgment of the judiciary,' Dr Ambedkar concluded, 'I therefore suggest that the provision suggested is not necessary and I oppose all the amendments.'
It is not as if the Constituent Assembly never discussed the possibility of former justices accepting an office of profit (or any other job). They debated it, and they rejected it on Dr Ambedkar's express recommendation.
V M Sudheeran could well argue that those were different times. As Jawaharlal Nehru said in that debate, 'High Court Judges and Federal Court Judges should be outside political affairs of this type, and outside party tactics and all the rest.'
Thatis the core of the issue, not whether someone held a specific office before being appointed to another post, but whether high Constitutional functionaries the President, the Chief Justice and his brethren, the Comptroller & Auditor General, the members of the Election Commission, Governors are 'outside political affairs of this type.'
Does the president of the Kerala Pradesh Congress Committee really want his party to be judged by Pandit Nehru's standard? Actually, without going back too far in time, let us look at three Governors intimately connected with Kerala itself.
Nikhil Kumar was the governor of Kerala up to March 4, 2014, when he resigned. Why? Because, as it transpired, the Congress was ready to offer him the party ticket for the Aurangabad seat in Bihar in the Lok Sabha polls.
Sheila Dikshit was appointed governor of Kerala almost literally at the stroke of midnight. Was it because the Manmohan Singh ministry had heard that the Election Commission was about to notify the schedule for the 16th general election just hours later, on March 5, after which fresh appointments wouldhave been problematic?
K Sankaranarayanan quit as governor of Maharashtra after his transfer to Mizoram was announced, and then announced that he was 'going back to Kerala and will start working as an ordinary Congress worker from tomorrow onwards.'
Does this sound like someone who was 'outside political affairs'?
Judging by the conduct of two governors of Kerala and one governor from Kerala, Congressmen treated Raj Bhavan as a transition point before taking a flight back into active politics. Or, even worse, it might have been treated as a refuge.
Consider, for instance, the case of S K Bhatnagar, defence secretary when the Bofors deal was inked. In 2002 a CBI special court felt that there had been 'a serious flaw in the procedure adopted by S K Bhatnagar as chairman of the negotiating committee as a result of which objectivity and impartiality could not be observed.' It was too late to question, leave alone prosecute Bhatnagar who had died in August 2001.
Why hadn't the CBI talked to him when the trail was still fresh, 15 years earlier? Because the Rajiv Gandhi regime had made S K Bhatnagar the governor of Sikkim and that meant he was effectively immune from investigation.
The same thing happened in the more recent 'Choppergate' scandal. In March 2005 the technical specifications were changed, which ultimately meant that the contract to supply helicopters for VVIP transport went to AgustaWestland.
Three key officials involved in that decision were M K Narayanan (then National Security Advisor), B V Wanchoo (then head of the Special Protection Group), and E S L Narasimhan (Director of the Intelligence Bureau). All three were appointed to gubernatorial office, M K Narayanan to West Bengal, B V Wanchoo in Goa, and E S L Narasimhan in Andhra Pradesh. Accepting without question that none of these three gentlemen participated in any scam, their appointment proved to be a road block in the investigation.
Is P Sathasivam a politician caught between two elections? Does the CBI seek his assistance in any scandal? Is there anything in the Constitution that prevents any retired judge from accepting any office?
I have no idea how P Sathasivam shall perform as governor. What I do know is that there was no scandal attached to his name in 18 years as a judge, in the Madras high court, in the Punjab and Haryana high court, and finally in the Supreme Court, nor any hint of political ambition.
Can V M Sudheeran make the same claim for Congress appointees? It may be a long way from Delhi's Tilak Marg to Thiruvananthapuram's Raj Bhavan, but there is no red signal in the Constitution.