August 10, 1998

With a constitution bench hearing a reference on the Chief Justice of India's conduct, the judiciary is a house divided against itself.

By Sumit Mitra

For nearly a quarter of a century, the Supreme Court has witnessed sporadic battles between the judiciary and the executive. Last week, however, the battlefield remained the same but the combatants changed. Instead of the two wings of the republic packing pistols, it was a rather unequal duel between the state and Chief Justice of India (CJI) Madan Mohan Punchhi.

It happened when a nine-judge bench, led by Justice A.S. Anand, began considering a presidential reference on the CJI's power to appoint and transfer judges on individual capacity. Earlier in the week, Attorney-General Soli Sorabjee -- appearing on behalf of the Union Government in a public interest plea to fill up 30 vacancies in the Allahabad High Court according to Punchhi's nomination -- sprang the court's biggest surprise of the year: the "reference" by the President.

Under Article 143 of the Constitution, the President can refer to the Supreme Court a question of law on which it is expedient to obtain the opinion of the court. This reference was unique as it sought the opinion of the Supreme Court itself on Punchhi's interpretation of the law regarding appointment to the apex court and appointments and transfers of high court judges, including chief justices. The laws on this matter -- laying down the constitutional provisions in a cast-iron manual of procedures -- are contained in the famous judgement of a nine-member bench of the apex court in the 1993 Supreme Court Advocates-on-record case. The majority of the bench held the view that the CJI must ascertain the opinions of two seniormost judges as well as that of a senior judge conversant with the high court from which the prospective appointee hails. Similarly, for shifts in the high courts, the CJI must frame his opinion through an elaborate consultative process.

Punchhi was one of the two dissenting judges on that bench (other than former chief justice A.M. Ahmadi) who disapproved of "silencing the singular voice of the chief justice of India for ever". Since his appointment to the top court on January 11 this year, he has steadfastly refused to tone down his "singular voice". Nor has the Government accepted his recommendation, allegedly through "limited consultation" of six appointments to the Supreme Court, transfer of four high court chief justices and appointments of nearly 100 high court judges. While the President, through the reference, sought the "doubts relating to the appointment and transfer of judges" to be resolved, the CJI, in a fit of judicial indignation, had returned to the government all files concerning the matter. The battle had thus changed, from an executive-judiciary stand-off to one of the CJI's individual supremacy over brother judges.

Discontent began to simmer between Punchhi and the Union Government almost since the BJP-led alliance came to power on March 20, and the CJI's office began sending volleys of recommendations. The Law Ministry found the recommendations short on consultation, therefore processing was halted. From May, the CJI's notes to the Law Ministry became increasingly critical. The flashpoints:

Punchhi flew into a rage when Law Minister M. Thambidurai wrote to him questioning recommendations of six names for the Supreme Court (see box). In recommending the names, the CJI "consulted" two seniormost judges of the Supreme Court, Justices S.C. Agrawal and G.N. Ray, but they were to retire shortly -- on September 5 and May 1 respectively. However, the "brother" whom the CJI did not consult is Justice A.S. Anand, who is scheduled to replace Punchhi after he retires on October 10, and remain in the top seat for three years.

The law minister drew Punchhi's attention to the omission and reminded him of the fact that, as the seniormost judge under former CJI J.S. Verma, he was signatory to a resolution that the consultative process must include five members of the Supreme Court bench, and the next CJI must not be excluded. The CJI wrote back saying "a single swallow does not make summer". Beneath the arcane proverb lay the resolve to shrink the consultative process.

Thambidurai also pointed out that the recommendations might have been made in a hurry precisely because Ray would retire in May (which he did) and that would bring Anand into the CJI's limited consultative panel. The law minister thus questioned the CJI's motive, a rare effrontery.

The collective view of Punchhi-Ray-Agrawal was that there could be no consultation on two names recommended for appointment to the Supreme Court -- B.N. Agarwal and K.G. Balakrishnan -- because no existing judge of the apex court was conversant with the two men's respective high courts, Patna and Kerala. The law minister pointed out that the claim was not quite correct because two Supreme Court judges, K. Venkataswamy and D.P. Wadhwa, had earlier headed the Patna High Court while Sujata Manohar, yet another Supreme Court judge, was the chief justice of the Kerala High Court in 1994. Such inaccuracies are rare in judicial notings but what is unprecedented is the silence of the judges on being told by the executive about the lapses.

The next round of Punchhi-Thambidurai exchanges relates to a letter from Chief Justice Sailendu Nath Phukan of the Orissa High Court to the President of India. The letter questions the wisdom of nominating Chief Justice Bhawani Singh of the Jammu & Kashmir High Court for the Supreme Court. Phukan, in his earlier stint in the Himachal Pradesh High Court, had worked with Singh. He wrote: "He (Bhawani Singh) had close political connections and used to have tremendous influence over executive officers." The Orissa High Court chief justice also wrote about the "close links" between Singh and the CJI.

The Law Ministry routinely forwarded the letter to the CJI. However, instead of putting Phukan's letter before his brother judges, Punchhi shot off an angry letter to Thambidurai which read: "Your letter brashly reveals a conscious design to stall the recommendations." It is at this point, in mid-May that Shastri Bhavan, seat of the Law Ministry, thought it should give as good as it got. Thambidurai wrote: "I am distressed by the tone and language used by one constitutional functionary to another."

The third and final missive from the CJI went out this month, in reply to another correspondence from the ministry. Punchhi wrote: "You are hell-bent on stalling. Therefore I return all the files sent by you." The CJI indeed sent the entire heap of appointment-transfer files -- contained in four trunks according to a ministry source -- back to Shastri Bhavan. What ignited the fuse in this case is a note the ministry had sent to him regarding the proposed transfer of Kerala High Court Chief Justice Omprakash to the Delhi High Court. The note from the ministry said that Omprakash's daughter and son-in-law being members of the Delhi High Court bar, the appointment ran against the grain of the established transfer policy which does not endorse such conflict of interests.

The mud-slinging became frequent, nor could it be kept under wraps for long. The matter had rocked the Rajya Sabha a few days ago when Kapil Sibal, Congress member and eminent senior counsel, had locked horns with Urban Affairs Minister Ram Jethmalani, a leading jurist, for having expressed reservations in public about the CJI's recommendations. Besides, the Committee on Judicial Accountability, a watchdog body, filed a writ seeking restraint on the CJI in making the appointments and transfers. The presidential reference was thus unavoidable. Said Sorabjee: "In order to avoid public controversy involving high constitutional dignitaries ... it was felt that it would be in the public interest if the President made a reference under Art 143."

• The questions sent by the President for clarifications, as Jethmalani indicated, hinged on Punchhi's interpretation of the 1993 judgement, not on the judgement itself. For example: Plurality of judges for consultation: The 1993 judgement is explicit on consultation between the CJI and at least three other judges as "checks against arbitrariness". The President has referred the matter to the Supreme Court because Punchhi has indicated that he may have other ideas, perhaps extending from his famous dissenting judgement in the 1993 case in which he denounced "vesting of powers in the hands of the oligarchy representing the judiciary as a whole ...";
• Consultation means CJI plus two other judges, or more?: The 1993 judgement said the consultative panel must include the CJI and three other judges. Verma, after becoming the CJI, expanded the panel to CJI-plus-five. But Punchhi consulted only two seniormost judges. The President naturally seeks a reaffirmation, or otherwise, of the 1993 judgement;
• Judicial review of transfers: The 1993 judgement said judicial transfers are not justifiable and only limited judicial review is possible. But Punchhi, as a member of that bench, disagreed with the view. The reference puts that minority view to a second test.

The nine points in the reference, now before the nine-judge bench, revolve around Punchhi's powerful conviction that the CJI is no first among equals. On the other hand, he enjoys primacy in rank and status over all the other judges. This view has been strongly articulated in his judgements as also in his conduct during the past few months, when he moved judges across the ladder of seniority and age for induction into the Supreme Court -- Bhawani Singh was 53rd in seniority when he was recommended -- and ordered transfer of high court chief justices on grounds he mostly kept to himself.

However, the presidential reference, besides putting Punchhi's reservations on judicial consultation to a review, also succeeds in scuttling every appointment or transfer move that he initiated. On September 15, when the bench meets to hear the parties served with notices, the CJI 's retirement will be only 25 days ahead. Anand, who will head the judiciary next, concurred with the majority judgement in the 1993 case. His term stretches a long way, up to November 1, 2001, after which comes the brief six-month term of Justice S.P. Bharucha, who too had been with the majority in the 1993 case. In the next four years, therefore, there is little chance of the CJI's individualism casting a shadow on the judiciary and the executive. As Sibal, a strong supporter of Punchhi in his stand-off with Thambidurai, says, "The Government does not wish to proceed on any of the recommendations made by the CJI. By the time the hearings on the reference begin in full scale, there will be a new face at the top of the judiciary."

Will that end the debate? Perhaps not, because the consultative process, as outlined in the 1993 judgement, can work only if the judges have harmonious views and the track records of those named for appointment and transfer are transparent. Sorabjee says the recent happenings highlight "the necessity for a national judicial commission". The commission project has been a non-starter because there is no unanimity on who will be its members, or how many members it will have. But, as India is learning from its post-Independence experience, the role of the judiciary has not been defined yet. In the '70s, the executive under Indira Gandhi asked for a "committed" judiciary and got it by brazen supersession. In the '80s, the executive had further leeway in the Judges Transfer case. The judiciary achieved a correction in the 1993 case, but, within the brotherhood of judges, the question of supremacy persisted. Now the question is: will the judiciary be represented as a collegium, or as an individual? Either way, it is a question of who is supreme: the brotherhood, or the super-ego?

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