The decision to appoint former Chief Justice of India Justice Sathasivam as the Governor of Kerala has sparked a fierce controversy. Even the Congress party is divided and speaking in two voices. Mr. Manish Tiwari has defended the appointment stating that no provision of the Constitution has been violated. Congress spokesperson Mr. Anand Sharma has criticized the appointment because due procedures were not observed which indicated a motivated decision. Both leaders have not questioned the integrity of Chief Justice Sathasivam. Both these Congress leaders and most other critics have missed the point.
Justice Sathasivam’s appointment is not questionable because any laws were transgressed. It is not questionable even because due procedures might have been ignored while making the appointment. It is not questionable because the Judge’s integrity is being questioned. It is highly questionable because in public perception the appointment violates a well established democratic norm.
The government’s move to appoint him as the Kerala Governor has unnecessarily provoked public innuendos that the government is considering him for the post as a reward for his verdict in April 2013 which provided relief to Mr. Amit Shah, the BJP President, then accused of involvement in the Sohrabuddin Sheikh and Tulsiram Prajapati fake encounter cases.
The circumstances that raised questions about Mr. Amit Shah’s role in those fake encounter cases are formidable. Mr. Shah was Minister of State Home Affairs in Gujarat while Chief Minister Mr. Narendra Modi was the Home Minister. Half a dozen police officers are presently languishing in jail charged with perpetrating the fake encounters. The main accused police officer has publicly written to the government naming Mr. Shah as the official who ordered the officers to act s they did. In the brief period when the encounters were executed 331 telephone calls between Mr. Shah and the officers had been recorded. The recorded conversation was deliberately erased by a senior police officer who was indicted by a court for the crime. If Mr. Shah had been aware of what the officers did it would make him complicit as an accomplice and abettor and therefore guilty.
Justice Sathasivam who heard the case and exonerated Mr. Shah said: “I deny the offer (of Governor) is a quid pro quo. Any other judge in my position would have given the same verdict.”
There might be no quid pro quo from the Judge's side. But could not government have conveyed a signal to other judges? Therefore in the circumstances does the offer made or accepted render it appropriate? It is an old adage that justice must not only be done but seen to be done. To be rewarded by an authority that was exonerated in cases by the Judge justifies public scepticism about justice being done. There was widespread criticism of Judges in the Jain Hawala Case after they accepted post retirement appointments from a Home Minister who was exonerated by them. The same should hold good for Justice Sathasivam.