Judicial standoff

The Union Government and the Chief Justice of India are at odds over key judicial appointments.

V. VENKATESAN
in New Delhi

"The process of appointment of judges to the Supreme Court and the High Courts is an integrated participatory consultative process for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reaching an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise."

- from the majority judgment in Supreme Court Advocates-On-Record Association v. Union of India and Others (1993).

THIS principle laid down in the 1993 judgment of the Supreme Court with regard to choosing judges for the apex court and the High Courts has now come under test. The Union Law Ministry is yet to take a decision on the recommendations of the Chief Justice of India (CJI), Justice M.M. Punchhi, regarding the appointment of six Judges to the Supreme Court. In the 26-member court there are four vacancies. Two more vacancies are likely to arise in September, when two judges retire.

The candidates recommended by the CJI are Justice K. Sreedharan, Chief Justice of the Gujarat High Court; Justice U.C. Bannerjee, Chief Justice of the Andhra Pradesh High Court; Justice R.C. Lahoti of the Delhi High Court; Justice Bhawani Singh, Chief Justice of the Jammu and Kashmir High Court; Justice B.N. Agarwal of the Patna High Court; and Justice K.G. Balakrishnan of the Gujarat High Court.

While holding back a decision, the Ministry reportedly sought to know from the CJI whether the recommendations reflected the collective view of the CJI and his two senior colleagues. Senior advocate Kapil Sibal said that the CJI had consulted his two senior colleagues, Justice G.N. Ray and Justice S.C. Agarwal, before making the recommendations, which were sent to the Government before Justice Ray retired on May 1. Justice A.S. Anand has since become the third seniormost Judge in the Supreme Court and the CJI did not seek his views. Justice Anand is likely to succeed Justice Punchhi as CJI in October 1998.

P.V. SIVAKUMAR
Chief Justice of India Justice M.M. Punchhi.

Justice Punchhi has said that he was not bound by the precedent set by his predecessor Justice J.S. Verma of consulting five senior Judges of the Supreme Court before formalising recommendations regarding such appointments. According to columnist Kuldip Nayar, Verma said that he had consulted, when he was in office, not only the senior-most judges but also senior members of the Bar. To this, Sibal replied: "Each Chief Justice evolves his own procedure to deal with appointments. The 1993 judgment makes it mandatory for the CJI to consult only two of his senior colleagues."

THE stalemate over the Supreme Court appointments follows the Centre's refusal to approve the transfer of the Chief Justices of three High Courts. The recommendations were returned to Justice Punchhi for reconsideration. Justice Punchhi had recommended that the Chief Justice of the Madras High Court, M.S. Liberhan, be transferred to the Guwahati High Court. The Government reportedly felt that both the Chief Minister and the Law Minister of Tamil Nadu had spoken against his transfer and that any such decision could be construed as a political move and could send out wrong signals. Pending before a two-member bench that includes Justice Liberhan is a petition by Jayalalitha, the general secretary of the All India Anna Dravida Munnetra Kazhagam (AIADMK), a key ally of the ruling coalition at the Centre, challenging the constitution of special courts to try cases against her and her associates.

The Government has held that Justice Liberhan is junior to Justice V.D. Gyani, the acting Chief Justice of the Guwahati High Court, who will retire on August 7, and the transfer as suggested by the CJI would cause embarrassment to both of them. In the case of Justice Om Prakash of the Kerala High Court, Justice Punchhi initially recommended his transfer to the Punjab and Haryana High Court, but subsequently modified it as a transfer to the Delhi High Court. The Government, however, found that Justice Om Prakash's daughter and son-in-law practised in the Delhi High Court and therefore decided that the transfer would be "contrary to basic postulate of transfer policy, namely inadvisability of judges presiding in courts in which their relations are practising."

The third transfer recommended by Justice Punchhi was that of Justice A.B. Saharya from the Punjab and Haryana High Court to the Rajasthan High Court. Justice Saharya had been transferred as the Chief Justice of the Punjab and Haryana High Court only on November 11 last year. Under a 1993 judgment, the Government held that repeated transfers within a short span of time should be avoided unless compelling public interest is to be subserved by such transfer, which was not indicated by the CJI.

R. RAGU
Chief Justice of Madras High Court M.S. Liberhan.

However, unlike in the case of the transfer of High Court judges, the Government is yet to write to the CJI expressing its reservations about his nominees for the vacancies in the Supreme Court. Kapil Sibal said: "Let the Government write to the CJI on why the nominees suggested by him are not suitable. If he is convinced, he may agree to drop those names from the list." The senior lawyer took umbrage at Urban Affairs and Employment Minister Ram Jethmalani's unfavourable remarks about some of the nominees without specifying any allegations against them. Sibal said: "Let the Law Ministry tell the CJI about its reservations over his nominees."

Jethlamani had said about some of the nominees of Justice Punchhi that "they are not the best persons" for the job. The Prime Minister's Office, however, disowned Jethlamani's statements, saying that "they are his own and not that of the Government." The PMO, in a statement, cautiously added that the Government did not question the right of the Chief Justice of the Supreme Court to recommend judges for appointment to the Supreme Court. However, the statement remained silent on the crucial question of why the Government was delaying a decision on his recommendations.

The CJI's recommendations have provoked those Chief Justices of the High Courts who in the normal course would have been promoted to the Supreme Court by virtue of their all-India seniority and merit. Justice P.S. Mishra, Chief Justice of the Calcutta High Court, resigned alleging that he was being superseded in the selection process. The Chief Justice of the Orissa High Court, Justice S.N. Phukan, has threatened to resign if he is superseded. Phukan brought to President K.R. Narayanan's notice the fact that Punchhi's nominees Justice Bhawani Singh, Justice Bannerjee and Justice Lahoti are junior to him. Phukan, who belongs to the northeastern region, has also warned that his supersession might lead to a feeling of alienation among the people of the region.

Phukan was earlier the Chief Justice of the Himachal Pradesh High Court, where Justice Bhawani Singh was a judge. Bhawani Singh later became the Chief Justice of the High Court. Phukan has had an unblemished record both in Shimla and in Cuttack. He complained in his letter to the President that Bhawani Singh, as the senior-most Judge of the Himachal Pradesh High Court, had not only close political connections but also tremendous influence with executive officials.

The Vajpayee Government, which cleared Punchhi's appointment as CJI despite intense pressure against his promotion by the Committee on Judicial Accountability (CJA), seems to be preparing itself for a confrontation with the CJI by delaying a decision on his recommendations. If the CJI's recommendations are returned to him for reconsideration, he could send them once again to the Government with or without any modifications; then it would be binding on the Government.

However, before returning the recommendations after "reconsideration", is the CJI bound to consult again his seniormost colleagues and carry their views? Yes, says Prashant Bhushan, senior advocate and a member of the CJA. In his view, the Government can insist on a wider consultation before finalising the appointments. Kapil Sibal, on the other hand, answers the question in the negative. He suggests that the CJI can again invoke the collective opinion that guided his first recommendations, if he so desires.

The 1993 majority judgment, in its summary, says: "In exceptional cases alone, for stated strong cogent reasons, disclosed to the CJI, indicating that the recommendee is not suitable for appointment, that appointment recommended by the CJI may not be made. However, if the stated reasons are not accepted by the CJI and the other judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the CJI, the appointment should be made as a healthy convention."

The Government, avers Prashant Bhushan, can delay a decision on the CJI's recommendations until the present CJI retires in October, as the 1993 judgment does not prescribe any time limit for the Government to approve the recommendations. Probably this apprehension has provoked a public interest petition in the Supreme Court seeking a direction to the Centre to fill the large number of vacancies of judges of High Courts and the Supreme Court. The petition, filed by advocate Mohan Lal Gupta, sought the court's intervention in the transfer and appointment of Chief Justices and Judges of High Courts and the Supreme Court on the recommendation of the CJI. As per the 1993 judgment, in the event of conflicting opinions by constitutional functionaries, the opinion of the judiciary, "symbolised by the view of the Chief Justice of India" and formed in the manner indicated, has primacy.

Interestingly, Justice Punchhi, who gave the dissenting judgment in 1993 in the case relating to the appointment of judges, disagreed with the majority view of the Constitution Bench - that the CJI in actual practice must be one in a body of men, that is, he with two of his colleagues in the order of seniority, and collectively as an oligarchy, recommend the appointment of Judges to the Supreme Court, and likewise in a body of more than those two, in the matter of the appointment of Chief Justices and other Judges of High Courts. The thrust of his opposition to the view was that it diluted the status of the CJI. "This is the barter which the CJI must accept to get back from the executive his lost primacy. He must forever muzzle his singular voice," he had said. He added: "The position of the institution of the Chief Justice, being singular and unique in character under the Constitution, is not capable of being disturbed."

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