JUDGES, and by extension the judiciary, have come into controversy before. But few as bizarre as the one involving M.M. Punchhi, the next in line to succeed the Chief Justice of India, J.S. Verma, when he retires on January 18, 1998. The issue has divided the Supreme Court Bar Association (SCBA). And has placed the apex judiciary, the prime minister and the president in a most uncomfortable predicament.
It all began a couple of months ago, when a few jurists of eminence—Shanti Bhushan, V.M. Tarkunde and H.D. Singh, besides some retired chief justices of high courts—petitioned the president, prime minister and the Supreme Court chief justice, charging that Justice Punchhi's conduct was "not consistent with the dignity of the office he holds". The charges levelled involve an alleged deal with politicians and graft and are believed to have been supported by annexures running into over 300 pages. Justice Punchhi, in the present case, remains helpless as "judges cannot answer back".
Shanti Bhushan refuses to confirm or deny specifics of the allegations. "We have taken a conscious decision not to discuss the charges with the press or any other forum except to confirm that such a move has been initiated," he told Outlook. Many in the SCBA feel that the move was timed to debar Punchhi from taking over as the chief justice as some of the charges dredged up are too old. But Bhushan counters this. "How does it matter if the charges are too old? When a person is being considered for appointment as chief justice, it is only fair that he should be found fit for the post. Such a person should be above board by any means," he retorts.
Punchhi's has been a name that evoked controversy in the past as well. The H.D. Deve Gowda government almost named him as chief justice superseding Verma when A.M. Ahmadi retired last December. But the public response was so strong, that law minister R.K. Khalap had to announce months in advance that Justice Verma would be the next chief justice. Anti-memorandists demand that the Central government should make its position clear and announce, in the same manner, that Punchhi would be the next chief justice.
But the present controversy goes beyond the issue of 'supersession'. There are no instances of such moves having been initiated in the past. And removal of judges, as specified in the Constitution, is possible only through impeachment in Parliament. But the only instance of an impeachment motion—that of Justice Ramaswami during the Congress regime headed by P.V. Narasimha Rao—showed the procedure is full of gaps. For example, in the final round, whether a judge has to be removed or not is determined by whether the majority is in his favour or against, rather than by the seriousness of the charges.
"India does not have the proper mechanism to deal with corruption in the higher judiciary. With the chief justice of India having no authority to deal with such matters—not even the power of transfer which is reposed in him in the case of high court judges—his position is purely moral," says Supreme Court lawyer Rajeev Dhawan. "At best, he may not assign work to the judge concerned where a secret accusation exists and some formal process is set in motion. But such non-assignment would be punitive," he adds.
Moreover, a Supreme Court judgement makes it clear that a sanction has to be obtained from the president (the appointing authority) and even an investigation (in a Supreme Court judge's case) requires some kind of approval from the chief justice of India. But anyway it will have serious implications. To go to the president would mean inviting the executive to pre-investigate the judiciary. And going to the chief justice might be embarrassing, though necessary if an investigation is to start at all.
The SCBA is split between the memorandists, now boycotting the requisitioned meeting on the plea that they do not want to discuss the issue at any forum, and those reading a motive into the whole exercise. Besides, there is a section that takes a strong view on corruption, yet disapproves of the way the memorandists have chosen to highlight the issue. The memorandists' motive seems clear. "If they were agitated over the chances of his becoming chief justice, it was unfair to keep quiet when he continued as judge. Can the two positions be separated?" asks a senior lawyer who advocates evolving a mechanism to deal with corruption in the higher judiciary sans 'witch-hunting'.
"The memorandists are right in not revealing the contents of the accusations as they claim. But there is a half-revelation already. People know there are serious accusations against Justice Punchhi made by high-standing lawyers. They should have maintained total secrecy," he asserts.
The president—constitutionally the appointing authority—is understood to have sought the attorney general's opinion, and referred the matter to the chief justice. Whether Justice Punchhi does become chief justice or whether his chances are affected by the present exercise may be a relatively minor event in the annals of the judiciary. But either way it is bound to embarrass, and unfortunately demoralise, the judiciary. For the judiciary to be effective, it should function absolutely beyond any cloud of suspicion.
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