May 30, 2020
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Grand Jury At Large

Politicians take sides on Justice Punchhi's appointment as CJ

Grand Jury At Large
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Political campaigns for and against Justice M.M. Punchhi, seniormost sitting Supreme Court judge and next in line for chief justice, picked up speed as incumbent Jagdish Sharan Verma's retirement on January 18, 1998, approached. Verma kept the Union government—and the nation—guessing. As late as Boxing Day, he had given no indication whether he would recommend Punchhi as his successor, creating immense consternation in political circles.

For the first time in judicial history, Rajya Sabha members launched a signature campaign against a probable chief justice. According to Hardev Singh of the Committee on Judicial Accountability (COJA), which set the campaign against Punchhi rolling in June 1997 with a 7-point memorandum questioning his integrity, some 30 MPs, cutting across party lines, lent their signatures.

Former Union law minister Shanti Bhushan says a process of impeachment could be initiated if the number reached 50. A representation would then be made to the vice-president to raise the issue in the House. But with the Lok Sabha having been dissolved and the Rajya Sabha adjourned sine die, the signature campaign was clearly a pressure tactic to persuade Verma to bypass Punchhi or convince him to step aside voluntarily.

A senior BJP MP who signed the petition says he found substance in the COJA memorandum. Referring to the 1993 nine-judge bench Supreme Court ruling which laid down seniority as the criteria for a chief justice's appointment, he says: "I agree seniority is a very important criterion in appointing a chief justice, but it is not everything. The fitness of the person must be considered in the interests of judicial credibility." The same judgement also laid down that the chief justice-designate must be "considered fit to hold office", he notes. "I don't agree that (a junior superseding Punchhi) will create a dangerous precedent. Where is the question when a person may be unfit? This is a very, very rare occasion."

RASHTRIYA Janata Dal MP Prem Gupta, who says he was asked to sign the petition by "BJP MPs", refused to do so on the grounds that the COJA's motive was itself suspect. "Our party won't support this kind of move against a sitting judge. After all, if there was anything wrong with him, the matter should have been raised earlier, not on the verge of his appointment."

BJP and CPI(M) MPs have signed the petition, but the CPI and other United Front partners have not yet finalised their stand. Janata Dal chief Sharad Yadav says he had been given copies of the petition and in turn had forwarded them to the party's nine Rajya Sabha MPs. The party is yet to decide its stand but is not keen on getting into a controversy involving the judiciary. Likewise, CPI general secretary D. Raja says "the matter will be taken up at our party's national council meeting in Hyderabad". He admits, however, that the documents provided by COJA merits "serious" consideration.

The judiciary now finds itself in precisely the kind of situation that the 1993 Supreme Court judgement—to which Verma was a party—hoped to avoid. The ruling held that the chief justice ought to make his recommendation "well in time to ensure its completion at least one month prior to the date of an anticipated vacancy." The rationale was to prevent "speculation and uncertainty" and to give the Union government

time to respond to the chief justice's recommendation. But as a Cabinet minister points out, the government is helpless. It can at best ask the chief justice to reconsider his decision but its view would not be binding. The government played its role by forwarding the COJA's petition to the President who in turn sent it to Verma. Sources say intelligence reports on the allegations against Punchhi were sent to Verma.

According to the code of conduct for judges mooted by Verma himself and adopted by the Supreme Court and the high courts in May 1997, the allegations against Punchhi were to be investigated by a three-member committee including a sitting Supreme Court justice. The Supreme Court Bar Association (SCBA) came out strongly against this proviso, insisting that it alone had the power to file a complaint against a sitting judge. SCBA president Kapil Sibal says the body would stand by its pro-Punchhi resolution but COJA insists that only a few hundred of the 3,500 members were present when it was passed.

According to COJA, Verma's concern ought to be "removing the miasma of public doubt" so as to create an aura of credibility around itself. Otherwise, it could adversely affect the judiciary at a time when it had become activist. Members say the petition was sent six months ago, allowing Verma plenty of time to take a stand. Senior lawyer R.K. Jain, while saying the allegations against Punchhi must be laid to rest, feels there is "no harm" in Verma having taken so much time over it. "After all, ex-chief justice A.M. Ahmadi was appointed at the last minute," he adds.

The appointment of chief justices has not been without controversy. There was a tussle between Justice Kuldip Singh and Justice Ahmadi for the top slot—Singh felt his claim was superior. He was to retire earlier and had been sworn in as judge minutes after Ahmadi. Twice before, during the Emergency, seniormost judges were superseded.

Some politicians feel the charges against Punchhi have given the legislature a stick to beat the judiciary with. They say Punchhi could be impeached even after being appointed if Parliament agrees: "Judges have been passing all kinds of orders and making remarks about politicians. Let them first set their house in order." It is precisely to avoid such an eventuality and maintain the Supreme Court's reputation for probity that Punchhi must be bypassed, says Shanti Bhushan. "The chief justice has 50 times the capacity of an ordinary judge to create mischief. It will have an effect down the line."

The allegations against Punchhi range from passing orders on matters in which he had a personal interest to protecting a fellow judge (V. Ramaswamy) accused of improprieties to accepting plots of land from former Haryana chief minister Bhajan Lal in exchange for a favourable ruling. The media has been polarised on the issue, with some journals taking the view that a non-appointment, even if erroneous, is better than a wrong appointment and others dismissing the campaign as motivated.

Shanti Bhushan addresses his appeal to the chief justice and the president. "They must not fail the nation. Can the president, in all conscience, put his signature on a warrant of appointment?"

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