Justice S.Abdul Nazeer’s Appointment As The Governor Without A Cooling-Off Period Brings It Under Scrutiny

Although it is not the first time that a former Judge of the Supreme Court has been appointed as the Governor of a state, this is the first time that a former Judge of the Supreme Court has been appointed so soon after his or her retirement.

Justice S.Fazl Ali retired as Supreme Court Judge on September 18, 1951. He was appointed as Governor of Orissa on June 7, 1952. He was also Governor of Assam from 1956 to 1959.

Justice Fathima Beevi was appointed Governor of Tamil Nadu in 1997, five years after her retirement from the Supreme Court. She retired as a Supreme Court judge on April 29, 1992.

Former Chief Justice of India, Justice P.Sathasivam, was appointed as the Governor of Kerala four months after his retirement. He retired as the CJI on April 26, 2014, and assumed office as the Governor on September 5, 2014.

Observers will be reading an implicit message in the narrowing of the cooling-off period in the above instances, between the date of retirement of a Judge of the Supreme Court, and their eventual appointment as the Governors, as it is indicative of the fall in respect for standards of judicial probity - not only among the retiring Judges, but within the Government, which had offered the post to them.

A longer cooling-off period can help to avoid criticism that there had been a quid pro quo between the Government, the biggest litigant before the Supreme Court and the retiring Judge.

Indeed, the Law Commission, in its 14th report, was of the view that it is clearly undesirable that Supreme Court Judges should look forward to other Government employment after their retirement. The report explained: “ The Government is a party in a large number of causes [cases] in the highest Court and the average citizen may well get the impression, that a judge who might look forward to being employed by the Government after his retirement, does not bring to bear on his work that detachment of outlook which is expected of a judge in cases in which Government is a party."

In its 232nd report, (August 2009) had said that sitting judges “seek consideration for such appointments either on the eve of their retirement or after their retirement”.

The Law Commission had made this observation in the context of selection and appointment in Tribunals, where a set procedure is prescribed and the time spent in inviting applications up to the selection and then clearance from the Government at various levels, is six months to a year. According to the report, the past experience clearly shows that whenever eligibility for appointment as Chairpersons and Members of Tribunals includes former or sitting Judges of High Courts or the Supreme Court or Chief Justices of such Courts, there may be not more than 5-7 instances where the sitting Judges may have, during their tenure of service, opted to become Chairpersons or Members of Tribunals. They seek consideration for such appointments either on the eve of their retirement or after their retirement, and if the period of selection and appointment would take time, they might not serve for more than 2 or two and a half years, where the retirement age is 65 or 68 years, the report had observed.

The former Law Commission Chairman, Justice A.P.Shah had recommended a three-year cooling off period for Judges before they accept any posts offered by the Government.

Indeed, former CJI, Ranjan Gogoi’s nomination as a Rajya Sabha member, soon after his retirement made well-known academic, Shubhankar Dam to comment that post-retirement sinecures allow retired Judges to gain proximity to power, policy-making and relevance in public life. Dam suggested limiting the Government’s discretion to pick and choose retired Judges to fill vacancies, but was doubtful whether such a reform could address political appointments such as the Governor, where only the good sense of the Judge concerned could prevail.

Unlike other posts like chairpersons of Tribunals and National Human Rights Commission, the Union Government has complete control over the appointment of a Governor, as it has always treated it as a patronage to be distributed among its senior party loyalists.

Eminent voices had expressed concern about this disturbing trend.

In 2012, the former Union Minister, the late Arun Jaitley said at a conference organised by the party’s legal cell that post-retirement jobs are being created through judicial verdicts.

He repeated this again in the Rajya Sabha on September 5, 2013: “I think we are going a bit too far now, in every legislation, in creating post-retirement avenues for Judges. Almost everyone, barring a few notable, honourable men, who are an exception, wants a job after retirement. If we (Parliament) don’t create it, they themselves create it. The desire of a post-retirement job influences pre-retirement judgments. It is a threat to the independence of the judiciary and once it influences pre-retirement judgments, it adversely impacts on the functioning of our Judiciary.”

The then party president and present union minister, Nitin Gadkari supported Jaitley and sought a two-year cooling off period for judges after retirement. In 2019, the Government told the Rajya Sabha that it did not intend to make the cooling-off period mandatory for post-retirement jobs for Judges.

In 2012, the former Chief Justice of India, late Justice J.S.Verma had emphasised the need for post-retiral code of conduct for Judges.

Senior advocate, K.V.Viswanathan, in his open letter to Justice Sathasivam, after his appointment as the Governor of Kerala in 2014, had said: “The arms-length distance between the executive and the judiciary, of course with mutual respect, needs to remain even after demitting office. If arms length is replaced by a warm embrace, it portends grave danger”.

Senior advocate, Sriram Panchu wrote in 2015 while criticising the consideration of Justice Sathasivam as the chairman of the NHRC: “Once a precedent was set, and by no less than a CJI, it would not be long before judges on the verge of retirement would have the vision of a comfortable gubernatorial position hazing their eyes while deciding sensitive cases against the government”.

Senior advocate, Sanjay Hegde, commented while writing against Justice Sathasivam’s appointment as Governor soon after his retirement: “An independent, impartial judiciary cannot exist if its members do not remember their judicial vows even after they demit office”.