1. EX-Cji as Kerala governor
    1. Anti-arguments
    2. Pro-arguments
    3. Justice Sathasivam notable judgments
  2. Doctrine of Postponement
  3. Lawyer databank to select judges
  4. SC 2013 rules on Death convicts
  5. Urdu as 2nd official language

EX-Cji as kerala governor

Why controversy? Ex-CJI Sathasivam was made Governor of Kerala, after Sheila’s resignation.

Criticism Sathasivam defends
Fali Nariman:This is most improper and unfortunate. I do not appreciate or approve of the idea of a former SC judge accepting a sinecure appointment, like that of a Governor. [Sinecure= An office that involves minimal duties]. Other CJIs do arbitration or consultation work for corporates after retirement. (and mint crores of rupees.) However, I was planning to do farming at village. But since President has offered this position, I’ve accepted. I never lobbied to get this job.
Sathasivam had given relief to Amit Shah in fake encounter case, so Modi offered him gift of Governoship.
  • When I did that case, noone knew Amit Shah would become a BJP President. So there is no quid-pro-quo.
  • I never gave clean chit to Shah. I had shifted sorabuddin case to Maharashtra.

Anti-arguments

Ex-CJI should not be made Governor because:

  1. Independent judiciary is the basic feature of Constitution. But when Judges seek jobs or a seat in Parliament from the Executive, this basic feature is not fullfilled.
  2. Promise of such post-retirement “job” can jeopardise the autonomy and accountability of the judiciary.
  3. This can create breach in balance of separation of powers.
  4. After retirement judges get appointed to Lokpal, NHRC etc. but those positions are eligibility requirements and autonomy in functioning.
  5. Governor’s post is seen as an ‘executive patronage’- typical reserved for ‘retiring’ politicians.
  6. Earlier retired judges of HC became governors. But this is the first time a retired CJI, got this job!
  7. Sathasivam was also a candidate for Lokpal job. So by giving him Governorship, Modi took him out of the race.
  8. Breach of protocol: In the order of precedence, 1st Prez, 2nd VP, 6th  CJI, 8th: Governor outside their state. So, CJI should not accept such ‘lower’ job. It is beneath his ‘dignity’.

Note: as per India Yearbook Ch.32: order of precedence is following:

  1. President
  2. VP
  3. PM
  4. Governor in their respective states
  5. Former presidents

5A.Dy.PM
6. CJI and Speaker of Loksabha
7. Leader of Opposition in LS and RS, and ~half dozen others (list not important for the present topic)
7A: Holder of Bharat Ratna
8: Governors outside their state.

Pro-arguments

There is nothing wrong in CJI becoming governor because:

  1. Post of governor is a constitutional post. SC is a constitional body.
  2. Punchhi commission: Governorship should not be given to person active in politics.
  3. A Former CJI will be an expert in constitutional matters- provides him to utilise his expertise in public service. This can be a healthy trend.
  4. There is no breach of protocol if retired CJI accept a lesser post, because he has retired.
  5. President chose to accept the Modi’s proposal as there is no constitutional bar in such appointment.

Suggested reforms

  1. Tribunals and commissions should be manned by a separate cadre of judges. (Instead of dolling out these jobs to retired judges- and opening floodgates for such criticism.) Govt should amend constitution for this.
  2. There should be ‘cooling-off’ period of atleast two years before retired judges takeup any sarkaari position.
  3. Union government should stop treating Governor job as a sinecure for party members, sympathisers and loyalists.

Justice Sathasivam notable judgments:

  1. Use of natural resources through Public Sector Undertakings.
  2. Commuted the death sentence of Sikh terrorist Bhullar- on the ground that there was inordinate delay in disposal of their mercy petitions by the President.
  3. Upheld Bollywood actor Sanjay Dutt’s conviction in ’93 Mumbai blasts.
  4. Included NOTA in EVM
  5. Made it mandatory for candidates to fill ALL columns in nomination papers. (=> Modi had to admit he is married.)

Doctrine of Postponement

  • 2010: Home ministry made advisory on media reporting by police. But still no proper regulation.
  • 2012: SC said, Judiciary can impose a temporary freeze on media report- of a particular case. IF such media-reporting is hurting the rights of the “accused”. This is called “Doctrine of Postponement”
  • (at that time, it was silent on “victim”)
  • But, Excessive media coverage of crime and court proceeding =Victim’s rights are jeopardized.
  • 2014: some NGO files PIL.
  • SC says- Yes, Media has right to freedom of speech (#19) but Victim also has right to live with dignity.(#21)
  • Therefore, SC appointed Gopal Sankarnarayan as amicus curiae, and has sought responses from the Union, states and UTs about this issue.

Lawyer databank to select judges

Union law minister listed following judicial reforms during some ceremony:

  1. Case pendency increased due to lack of manpower and infrastructure. ~4400 posts lying vacant.
  2. We’ve increased no. of high court judges by 25%
  3. We should maintain a  databank on the performance of young lawyers. So later we can select the best among them- for judges post.
  4. We need to promote alternative dispute resolution mechanism-so cases can be settled outside courts.
  5. Digitisation- computerization of courts.

SC 2013 rules on Death convicts

  • 2013 SC rule, for hearing death convict’s petition- Three judges bench will decide. But such petitions are heard secretly in judges chamber.
  • 2014: the Bombay blast mastermind Yakub Memon doesn’t like this. NOT ONE BIT. So, he files writ petition in SC, demanded a death convict should be given every chance to be heard in an open court, instead of deciding secretly in judge’s chamber.
  • SC verdict: we will hear all the cases of review petition of death convicts in an open court with a bench of 3 judges.
  • If prior petitions were heard by less than 3 judges bench, such death convicts can request CJI to setup new 3 judges bench.

Urdu as 2nd official language

  • Hindi is the official state language of Uttar Pradesh (1951’s act).
  • 1989: UP legislature amended that act to make Urdu, the second official language of the State.
  • this time, UP Hindi Sahitya Sammelan did not like it. Not one bit. So they went to SC. Their argument- once a state adopts Hindi as official language, it cannot adopt any other language.
  • 2014, SC ruled following:
  • As per Article 345, state legislature may adopt
    • one or more languages
    • OR Hindi
    • As official language of the state.
  • Constitution makers mentioned Hindi separately, only to promote its use.
  • Otherwise, article 345 doesn’t impose any restriction on the states to use Hindi only.
  • Article 347 prescribes that a language can be made official upon the satisfaction of the President. But that is an independent process.
  • Delhi’s official language is Hindi, yet, even they adopted Punjabi and Urdu as officially recognized languages. Similar scenario in Bihar, Haryana, Jharkhand, Madhya Pradesh and Uttarakhand.
  • In short, there was no constitutional bar against a state government. If they already have Hindi as official language, Constitution doesn’t stop them from declaring other language as second official language.
  • Therefore, please stop wasting courts time and UPSC aspirants’ time with all such petitions.