Consultation is the key

In fact, former Chief Justice J.S. Verma, who gave the majority judgment in the Judges Case II, clearly indicated that for all appointments to the High Court as well as to the Supreme Court and for transfers, the view of the chief justice of India must be formed after consultation with at least two senior judges of the Supreme Court and some other judges. What it meant was that the opinion of the chief justice should really be the opinion of the judiciary, which is symbolised by the view of the chief justice.

Chief Justice Punchhi never consulted his number two, Justice A.S. Anand, who now heads the nine-judge bench to decide on the President’s reference to the Supreme Court on appointments and transfers. The government had no option but to approach the President to ask the Supreme Court to give its opinion on whether the consultation of the chief justice of India meant “a plurality of judges” or the “opinion of the chief justice alone”. It goes to the credit of Attorney General Soli Sorabjee that he advised government to “see that the constitutional norms and the prerequisites of consultation are observed”. Otherwise, a public controversy involving judges would have continued, much to the detriment of the judiciary.

Chief Justice Punchhi’s plea in his letter to the law minister is that “there is no tradition of a wider consultation with judges. Had it been so, it would have formed part of the memorandum of procedure or at any time attempted to be made part of that procedure”. In fact, the practice of wider consultation has been followed since the time of Justice J.V. Chandra-chud. Justice Verma formalised it in his letter to the government on November 4, 1997. Chief Justice Punchhi was one out of the five senior-most judges who signed it. The government was justified in insisting on wider consultations because four of the six judges recommended by Chief Justice Punchhi would have become the chief justice at some point.

One other aberration of Chief Justice Punchhi was that he made recommendations much before the vacancies occurred so that he would not have to consult Justice A.S. Anand. It was pointed out to the chief justice that “making recommendation much in advance on April 24, 1998 for filling vacancy due to arise on September 5, 1998 is rather unprecedented”. The chief justice consulted Justice G.N. Ray, who was to retire six days later, and ignored Justice Anand, who after Justice Ray’s retirement, would have been the most senior.

Apart from the violation of the procedure of consultation, the government had strong objections against some of the names recommended by the chief justice. The law minister said that “serious allegations of misconduct” had been levelled by one High Court Chief Justice against one of the persons suggested. It is strange how Chief Justice Punchhi recommended the transfer of Justice Om Prakash Verma, presently chief justice of the Kerala High Court, as chief justice of the Delhi High Court. First, he has been transferred from the High Court of Allahabad to the Karnataka High Court. Second, his daughter and son-in-law are practicing in the Delhi High Court.

There is yet another unusual step taken in the proposal of names by the chief justice for the appointment of judges to the High Court of Haryana and Punjab. The practice is that the particular chief justice recommends the names but Chief Justice Punchhi has recommended two advocates, Suresh Amba and V.K. Jain, for appointment as judges without seeking the opinion of the Chief Justice of Haryana and Punjab. Both these names were originally recommended by the then chief justice of the High Court in 1993 but the senior judge of the High Court, Justice S.S. Sodhi, had disagreed with the recommendation. Thereafter, the chief justice had rejected the proposal. The appointment of the two advocates was again initiated in 1997 by then chief justice of the High Court, Justice K. Sridharan. This recommendation was again opposed by the senior judge of the High Court Justice M.S. Liberhan. Then Chief Justice of India J.S. Verma rejected the proposal.

What is most disturbing is the tone and language used by one constitutional functionary to another. For example, Chief Justice Punchhi, defending his right not to hold a wider consultation, says: “A precedent is set up deliberately and consciously and not obliquely. No conscious decision as such is reflected from the proceeding. `A single swallow does not make summer’. A single instance does not set in a tradition or practice unless consciously repeated. And this one has not been repeated thus far.”

Chief Justice Punchhi should have known that his earlier recommendation on transfers had created a furore in the country because they were not fair. He also had not held consultations with senior judges before sending his proposal to government. Similarly, his suggestion for appointments to the Supreme Court and the Haryana and Punjab High Court evoked a controversy. At no stage has the government questioned the right of the chief justice to recommend names for the appointment of judges to the Supreme Court or for the transfer of chief justices and judges of the High Court. All that it has pointed out is that the requirement of institutional consultation by the chief justice with his colleagues has to be complied with as contemplated in the Supreme Court judgment in the Judges Case II.

It’s a pity that Chief Justice Punchhi’s short tenure has got mired in differences. Let the entire issue come to the fore. Let transparency prevail. If the BJP-led coalition can do this, it would be the biggest achievement of a government that has otherwise fared badly on all fronts. The very reference through the President is a good beginning and it should be considered a plus point for Prime Minister Atal Behari Vajpayee, who accepted the attorney general’s opinion and set the ball rolling.