EVEN as the Bar closes ranks in defence of the senior-most Supreme Court Justice, M.M. Punchhi, who is accused of improprieties by a group of senior lawyers, legal opinion is divided on the course of action open to the government. Especially since there are only three months to go before the chief justice retires and Punchhi takes over on January 18.
A section of lawyers maintains the ball is in chief justice J.S. Verma's court. Says Supreme Court lawyer Harish Salve: "There are few judges as willing to examine the conduct of the judiciary." Prashant Bhushan, a member of the Committee on Judicial Accountability (COJA) which levelled the charges against Punchhi, agrees. The code of conduct drawn up by Verma, and subsequently adopted by the apex court, provides for an in-house inquiry into charges against a sitting judge. "But no specific procedure has been laid down," he notes.
However, Supreme Court Bar Association (SCBA) president Kapil Sibal claims that only a bar association can file a complaint against a sitting judge. Hence, COJA ought to have submitted its petition to the SCBA, which would then, depending on the evidence against Punchhi, have acted on it. Even now, the SCBA is willing to make a fresh appraisal of the case, provided the petition is made available. But former SCBA president R.K. Jain has other ideas: "Under the Constitution, Parliament alone is empowered to probe the charges against a sitting Supreme Court judge. A hundred MPs will have to move for an investigation, after which the Speaker can take cognisance of the matter."
Either way, now that charges against Punchhi have been publicised, Verma's in a corner. If he is not seen to act, the political establishment could use charges of judicial inaccountability to tame the judges. There is the danger of supercession, which the Bar and Bench have always fought.
The charges were detailed (with minor inaccuracies) by a daily, against whom the SCBA has threatened legal action. The first of these was initially levelled by former Indian Express editor Rahul Singh in 1986. Referring to the case filed by an academician, Dr Ram Gopal, against Hardwari Lal, then MP and close associate of the then Haryana chief minister, it said: "The two judges who ruled in favour of Mr Hardwari Lal were Justices M.M. Punchhi and G.C. Mittal. Justice Punchhi was among those favoured earlier by Mr Bhajan Lal with a plot of land in Panchkula. Nor is this all. A month before Mr Bhajan Lal was removed from chief ministership, he allotted some more plots in Gurgaon from his discretionary quota. Among the beneficiarieswere a Miss Madhu and a Miss Priya, who turn out to be daughters of Justice Punchhi. This 'allotment' was done on May 1. The date on which the High Court gave its judgement on Ram Gopal? Also May 1."
Salve and Jain insist that when they oppose any move towards superceding Punchhi, they are concerned about safeguarding an institution, rather than an individual. Says Salve: "We had two supercessions, both for the wrong reasons. Do not forge a weapon you cannot contain. " COJA's move, they say, is ill-timed. Politicians are decrying judicial activism and the executive wants to curb public interest litigations. It also wants a larger role in the appointment of justices; in a '94 ruling, a nine-judge bench of the Supreme Court had reduced the executive to a consultative role (Punchhi had delivered a dissenting judgement).
COJA has attracted much flak, with the SCBA suspending three of its members and describing its petition as motivated and irresponsible. Bhushan feels the resolution was prompted by vested interests who hijacked the SCBA meeting: "The interests are of two kinds; those who hope to gain from the judge himself and politicians who want such a judge to be in a position to influence corruption cases against them." Salve admits that lawyers have a responsibility to forward complaints against a judge to the chief justice. But equally, they have a responsibility to ensure that the complaints are not publicised, so that public faith in the judiciary is not eroded: "The right procedure was followed in the wrong way."
The SCBA has also come in for criticism, for having projected itself as the protector of an individual judge rather than of the institution. The question of possible supercession and insulating the judiciary from attack should have formed the basis of their resolution rather than giving Punchhi a character certificate. Kamini Jaiswal, a COJA member, says the resolution hardly reflects the Bar's opinion. How could the SCBA have passed judgement on the petition, when they had not read either the charges, or the evidence supporting them?
But in the end, Salve insists the matter is best left to Verma: "If you have faith in him when he deals with a Narasimha Rao then have equal faith when he deals with Punchhi." But is it really that simple?