In the last few weeks, the media has been following two stories with much enthusiasm: One is about the removing of UPA-appointed governors by the NDA government, and second, the appointment of former Chief Justice of India P Sathasivam as governor of Kerala. Many commentators have taken strong positions on Justice Sathasivam’s appointment and for them the issues at stake are: Judicial independence, constitutional democracy and the rule of law. They believe that such appointments undermine the credibility of judiciary as an institution. The other group argues that this charge of constitutional impropriety has no basis and the government has done well by choosing a judicially trained mind over a political careerist for the post.
There are signs that this debate is now shifting from issues of constitutional jurisprudence to jurisprudence of motives, incentives and extraneous influences. This augurs bad for both the executive and the judiciary. Instead of building a debate around the arguments of fears, motives and probabilities, we should talk about evolving principles, policies and a robust judicial culture that confronts post-retirement temptations, erosion of values and rising propensity of the executive to take advantage of these tendencies. This brings to focus another idea that is discussed often: The introduction of a ‘cooling-off’ period for judges. I feel such a policy would dissuade judges on the verge of retirement from hobnobbing with people which can lead to questions of impropriety.
After retirement, many judges join lucrative arbitration work, which, I think, should also be subjected to a cooling-off period. Instead of doing this, they can take up other challenges: Teach in a law school or build ‘objective and informed’ public opinion on important issues. They have a great role model in Justice Krishna Iyer whose contribution to every walk of life demonstrates that even post retirement days could still be productive, creative, rewarding and fulfilling.
Mool Chand Sharma is a member, Law Commission of India
The views expressed by the author are personal