Whose Right Is It Anyway?

WHO should appoint judges to the Supreme Court? And who is responsible for their transfers from one court to the other? Never an easy question to answer at the best of times, the issue is now tied up in knots. The authority of the Chief Justice of India in appointing judges was never in question—at least by successive previous governments. But now, a spanner has been thrown into the works with the Union Law Ministry questioning Chief Justice M.M. Punchhi's decision to appoint judges to the apex court and high courts.

In a note to Justice Punchhi on July 17, law minister Thambi Durai made it clear that the law ministry is "entitled" to seek a "clarification" on any appointment of judges. The tone of the law minister's note was sharp, its implication clear—he does not appear too keen on the six judges whose names Punchhi had forwarded for appointment to the Supreme Court in April.

The appointments of judges is an issue close to the heart of Chief Justices. And previous governments have generally tended not to meddle in this potentially dangerous issue. Well-placed political sources cite the example of former chief justice A.H. Ahmadi, whose tenure was also marked by appointments that raised eyebrows. The BJP government, on the other hand, has put its hands into a hornet's nest.

The question marks over the appointments recommended by the Chief Justice—coupled with home minister L.K. Advani's statement that the judiciary has to be more responsive—indicate that the stage is set for a fresh clash between the executive and the judiciary.

Criticism of the Chief Justice of India comes from other sources besides the Law Ministry. His 'brother' judges too are not amused by Punchhi's decision to fill in six nominees for the apex court, reportedly superceding a number of senior judges in the process. One disgruntled judge, Justice P.N. Mishra of the Calcutta High Court, has already quit. And chances are that others may follow suit. In what is seen as an unprecedented move, some judges have written strongly-worded letters to the President regarding the proposed appointments.

Another judge threatening to quit is S.N. Phukan of the Orissa High Court who believes, like Mishra, that he has been unfairly excluded from the selection for the Supreme Court. In a letter written to the President on May 12, Justice Phukan said that bypassing him and appointing Justice Bhavani Singh as Chief Justice of Jammu and Kashmir, is a mistake. According to Phukan, he had met Punchhi on March 9 and was with him for 45 minutes. "He did not inform me if there was any allegation against me or if I should change my way of functioning," Phukan wrote.

Other extracts from the letter suggest the heights to which intrigue has reached in the upper rungs of the Indian judiciary. Writes the Chief Justice of the Orissa High Court: "It is shocking to learn that Mr Justice Bhavani Singh, Chief Justice of the J&K High Court has been recommended for appointment as a judge of the Supreme Court. Justice Bhavani Singh was the senior-most puisine judge in the High Court of Himachal Pradesh when I was its Chief Justice. While a judge of that high court, Justice Singh, had not only close political connections, he also used to have tremendous influence over executive officials." Phukan continues: "It was he (Bhawani Singh) who introduced me to the present honourable Chief Justice which would go to show that he is close to Hon'ble Mr Justice M. M. Punchhi. "

Asked by Outlook whether he would follow Justice Mishra's example and resign, Justice Phukan was philosophical: "I'll cross the bridge when I come to it. Meanwhile, I leave the decision to God and my destiny."

 The uproar created by Phukan's letter led to a Union law ministry assessment. According to this, Justice Bhavani Singh "is much lower down in seniority and the number of Chief Justices and permanent judges senior to him is 42." The assessment, made with the help of inputs from different state capitals, also says that two other Supreme Court judges recommended by Punchhi, Justice Balkrishnan, currently Chief Justice Gujarat High Court, and Justice B.N. Agrawal, Patna High Court, number 8 and 15 respectively on the seniority list.

THE intelligence assessment made of another judge on Punchhi's appointment list of six revealed that he was under an open investigation by the Income Tax department in Calcutta last year for assets and properties running into millions of dollars.

The key to the issue is clearly the role of the Chief Justice. Punchhi maintains that he alone can decide on appointments and that the precedent of consulting at least two senior-most judges need not be followed. The present system of appointments and transfers of judges is governed by Articles 124, 217 and 222 of the Constitution. The benchmark in all such cases is Supreme Court Advocates on Records Association vs the Union of India case of 1993.

A nine-member bench of the Supreme Court ruled that before making recommendations for appointment of Justices at the apex court as well as high courts throughout the country, the Chief Justice of India must obtain the opinion in writing of other senior judges of the Supreme Court and in some cases, of high court judges and chief justices.

According to a significant writ petition to be moved in the Supreme Court by a Committee on Judicial Accountability, "it has been repeatedly emphasised in the majority opinion in the judgement that the opinion of the Chief Justice of India is really the opinion of the judiciary which is only symbolised by the views of the Chief Justices of India....and the view of the judiciary has to be ascertained by the Chief Justice after consulting at least two senior judges of the Supreme Court and such other judges of the Supreme Court who are likely to be conversant with the work of proposed appointees by virtue of their having worked in the same high court as the proposed appointees."

The petition seeks to issue a writ in the nature of a mandamus or any other appropriate direction to the respondents—in this case the Chief Justice of India and secretary, department of justice—to follow the procedure laid down by the apex court in the Supreme Court Advocates on Records Association vs the government case. Interestingly, as senior advocate Prashant Bhushan points out, while at that time eight of the nine-member judges were firm in their opinion that the Chief Justice should consult other judges while making appointments, the only one who dissented was Justice Punchhi himself.

The 'reputation' of the judges is admittedly a difficult criteria to determine. But many justices admit privately that some states were under-represented at the national level because they did not lobby enough. For instance, except for Justice P.L. Hansaria who was appointed to the apex court in 1996, the Guwahati High Court has remained unrepresented in the Supreme Court even though it covers seven states.

But the fireworks have already begun in the latest controversy over the appointment of judges. In the Rajya Sabha last week, Union urban development minister Ram Jethmalani, also a distinguished lawyer, and Congress member Kapil Sibal, another legal luminary, debated the appointment of judges for a full hour. According to Jethmalani, the proper procedure of appointing judges was not being followed. In his opinion, the idea was not to malign the judges or judiciary but only "to point loopholes in the system and for a better system to be introduced".

The Union government will soon have to decide on what course of action it must take on Punchhi's recommended list. While the Law Ministry has been taking a tough stance, it remains to be seen if the BJP government would like to cap the controversy or allow the executive versus judiciary confrontation to fester.