Why a Governor's Job for Justice Nazeer Feels Jarring

Even if the appointment was unilaterally initiated and finalised by the ruling clique, many would still see it as a reward for being a good boy.

A communication from the Rashtrapati Bhavan on Sunday announced that the president was pleased to appoint Justice (retired) S. Abdul Nazeer as Governor of Andhra Pradesh. It must be presumed that Justice Nazeer has given his consent to taking up the new responsibility in Andhra Raj Bhavan.

This is not the first time a retired Supreme Court judge has been tapped on the shoulder for a gubernatorial assignment. The most recent precedent, of course, was the appointment of Justice P. Sathasivam as Governor of Kerala, soon after the Modi regime began its innings in 2014. That appointment, of course, got many a tongue wagging. That was then. But given that the Modi government is, for all intents and purposes, now engaged in a cold war against the higher judiciary, Justice Nazeer’s induction as a Governor deserves attention and reflection.

At the Supreme Court, Justice Nazeer was respected as a middling judge; he is not associated with too many milestone rulings – except that he was part of the five-member Ayodhya bench that decided the title of the disputed Ramjanmabhoomi. Led by Chief Justice Ranjan Gagoi, that bench was seen as trimming its judicial sails to navigate the new post-2019 political realities of a ‘Naya Bharat’. Whatever the judges’ thought processes, their judgment handed the ruling party its most consequential political achievement, putting a judicial imprimatur on a 40-year-old Hindutva project. Justice Nazeer’s presence on that bench, “as the only Muslim judge”, added to the unanimous verdict’s judicial authoritativeness and made it palatable, if not totally acceptable, to all those who would have preferred a different outcome.

An appointment to a Raj Bhavan is a political decision and such appointments have been part of the ruling party’s bag of patronage since the early years of our Republic. Justice Nazeer’s induction can perhaps be seen as the BJP’s way of signalling some kind of message to the minorities: that while the Modi regime may be demonstrably unwilling to accommodate – or certainly not “appease” – the Muslims in the BJP’s vast electoral stable, it has not entirely shut its door on the largest minority community in the country and that the minuscule Muslim elite may not feel all that shut out from the crumbs of patronage.

Yet it is difficult to subscribe to this rather innocuous interpretation of a gubernatorial job for Justice Nazeer. In recent years, especially since 2019, the BJP has converted Raj Bhavans in non-BJP-ruled states into hostile sites of harassment and subversion of elected governments. Constitutional brawlers like a Jagdeep Dhankar in West Bengal or an R.N. Ravi in Tamil Nadu or a V.K. Saxena in Delhi’s Raj Niwas have redefined the role of governor/lieutenant governor. It is difficult to see how the sober and dignified Justice Nazeer would be of any use to the master-puppeteers in this non-BJP-ruled state.

It would be an injustice to Justice Nazeer to smell in the Raj Bhavan perch a quid pro quo for the Ayodhya judgment. He is no Ranjan Gagoi. Yet, there is something un-kosher about this appointment. Even if the appointment was unilaterally initiated and finalised by the ruling clique, many would still see it as a reward for being a good boy.

Also read: The Governor’s Office Has Become Too Convoluted for Constitutional Comfort

What is particularly troublesome about Justice Nazeer’s appointment is that it comes at a time when the higher judiciary is attending to the much needed task of reclaiming its lost autonomy and is striving to reassert its institutional role as a guardian of constitutional values. This re-assertion, undoubtedly, is the most necessary task if the Republic is to be firewalled from the creeping authoritarianism.

A post-retirement sinecure had, of course, become a powerful tool in the hands of the executive much before the Modi-Shah duo occupied Raisina Hill. Barring few exceptions, the entire IAS, IPS and IFS community – the good, the bad and the ugly – is happy to get involved in the ruling politicians’ dirty tricks in the hope of a post-retirement ‘accommodation’. And, of course, the leadership of the armed forces has come to see post-retirement ‘accommodation’ as an entitlement. This temptation has proved, over the decades, to be the most subversive and untamed virus in our quest for good governance and a virtuous society.

The judiciary has, by and large, spurned the temptation and has kept itself uninvolved in getting sucked into the politicians’ games. Perhaps the first judge to get tempted was the then chief justice, K. Subba Rao, who allowed himself to be talked into the Swatantra Party/Jana Sangh leaders into becoming the Opposition’s candidate for the office of the President of India. During and after the Emergency, the judiciary never fully recovered its earlier elan.

Also read: The Tamil Nadu Governor Is Flouting Democratic Practices as a Political Offering

In recent decades, the “system” has created a very large number of commissions and tribunals which are to be headed by retired judges and chief justices. This came about after the violent 1980s when the political class realised that its reputation and image as a competent overseer of the Indian state needed to be shored up; commissions and tribunals headed by respected judges helped covered the elected governments’ trust deficit. But, barring a few honourable exceptions like Justice J.S. Verma, these commissions and tribunals still ended up getting staffed by those whom the system sees to be compliant and complicit. The message to the judicial hierarchy is plain and simple: “Play along and we shall be good to you.”

Justice Nazeer’s departure for the Raj Bhavan is particularly jarring because the ruling clique is loudly arrogating for itself unadulterated and total constitutional legitimacy, it does not need the judiciary and its functionaries to endear itself to the citizens. On more than one occasion, the Union law minister has made it abundantly clear that the judiciary’s only function is to fall in line with the ruling establishment and its acts of omission and commission.

Many thoughtful voices have felt that the time has come to reconsider this business of post-retirement sinecures for the higher judiciary. Justice Nazeer’s appointment should revive the debate.

Harish Khare is a former editor-in-chief of The Tribune.