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Journalism of Courage
Chief Justice of India M.M. Punchhi will retire in mid-October this year. His recommendations for appointments to the high courts and the Supreme Court had become part of the judicial push-and-pull at the apex court itself. By making the presidential reference to the entire gamut of the appointment and transfers of judges, Justice Punchhi8217;s recommendations are effectively stalled in terms of the date of his retirement itself. With this reference the Union Government has saved itself any embarrassment with the future line-up of Chief Justices of India by throwing the hot potato of judicial politics back into the judicial ken. The judiciary8217;s future now lies in its own hands.
That future is bleak if the nine-judge bench now hearing the reference does not realise that the heart of the problem is not the nine questions framed in the reference but the three basic issues of integrity, discipline and transparency. None of these issues is raised by the reference which must be answered by a bench consisting ofJustices A.S. Anand and S.P. Bharucha, who had answered through the majority judgment of Justice J.S. Verma in the Supreme Court Advocates on Record 1993 case almost all the questions raised by the reference.
Justice J.S. Verma, speaking for Justices Yogeshwar Dayal, G.N. Ray, A.S. Anand and S.P. Bharucha had laid down that the best available persons from among those suitable must be selected for appointment through the following procedure:
For the Supreme Court he must consult two seniormost judges of his own court plus the views of the seniormost judge who comes from the high court whose judge is being considered for elevation; in appointments for the high courts, the Chief Justice of India must take into account the views of his colleagues in the apex court who would be most conversant with the high court under consideration, the chief justice of that high court and, if he feels like, the views of one or more senior judges of that high court; the chief justice of the high court must give his opinionabout the candidate from his high court after ascertaining the views of at least two seniormost judges of the high court; the ascertainment of the opinion of the other judges by the Chief justice of India and the chief justice of the high court, and the expression of their opinion, must be in writing; all those giving an opinion must keep in mind the legitimate expectation of seniority which is the rule to be departed from only for 8220;strong cogent reasons8221;.
The majority judgment clearly laid down that the President could not issue a warrant of appointment for judgeship of the high court or the apex court except in conformity with the opinion of the Chief Justice of India. The only exception was where positive material relating to antecedents on personal character was put before him. Even here the Chief Justice had to put this material to those he had consulted in writing.
If they unanimously back the reiteration of the appointment by the Chief Justice of India then the Union government cannot stop thatappointment. But if they are of the view that on the material disclosed the appointment recommendation ought to be withdrawn in spite of the reiteration by the Chief Justice of India, the Union government has a choice of not implementing the Chief Justice of India8217;s recommendation. The Union Government may not implement the Chief Justice of India8217;s recommendation for appointment where his opinion is not agreed to by the senior judges consulted by him and such judges state the reasons for the unsuitability of the candidate.
Dissenting from this Justice Punchhi then lamented that the majority had reduced the Chief Justice of India to 8220;one in a body of men8221; and this barter of collective wisdom must be accepted by the Chief Justice of India to get back from the executive his lost primacy. The questions in the reference 8220;are the recommendations made without any consultation binding on the Government,8221; which means that Justice Punchhi as the Chief Justice of India has pursued his dissenting line ofthinking.
But this has a good precedent. In the entrenched fights after the 1993 judgment for the Chief Justiceship of India every winning Chief Justice seems to have followed the judgment according to his convenience in recommending appointments and making transfers. That has created bruised judiciary. Justice S.R. Pandian in his judgment had pointed out how 8220;generations of men from the same family or caste, community or religion are being sponsored, initiated and appointed as judges.8221; This was the clearest pointer to the long-range planning of judicial appointments by the Bombay Gujarati-Parsi lobby followed by the Gujarat, Andhra Pradesh, Tamil Nadu, Orissa, West Bengal, Bihar and Karnataka lobbies. Integrity is not the shining virtue of lobbyists and secrecy is their hallmark. So it is with the newly emerging Punjabi and U.P. lobbies at the apex court.
The reference bench cannot review its own nine-judge bench judgment. The bench has started well by calling for the documents that necessitated thereview and those relating to the past practice. But the freedom of the apex court lies in whether these documents will be ordered to be made public in totality or not. Integrity is transparency regardless of whether one holds power as a judge.
