After January 18 next, when Chief Justice of India J.S. Verma retires, who will occupy Court No. 1 at the Supreme Court?Justice M.M. Punchhi, the senior most judge, should fill the chair in the normal course of things, provided - as a 1993 judgement of the apex court goes - he is "considered fit to hold the office; and the proposal is initiated in advance by the Chief Justice of India". The trouble is, Verma has not written a line yet to President K.R. Narayanan on his choice of successor. The 1993 judgement, delivered by a bench on which Verma was on the majority side, enjoins upon the Union Government to announce the name at least a month in advance, by December 18 in this case. The judgement also gives six weeks' time for the Government to process the chief justice's recommendation. To conform to his own judgement, Verma was required to recommend his successor latest by November 6. But there was no response from his office even as the Government's December 18 deadline for announcement went by. Such a long delay may point towards a doubt in the chief justice's mind about the "fitness" of his colleague. The "doubt", if any, can only originate from a seven-point memorandum against Punchhi delivered to the chief justice in June this year by a small cabal of activist advocates - including former law ministers Shanti Bhushan and Ram Jethmalani - under the banner of the Committee for Judicial Accountability. Doubtful entry: Justice Punchhi was a dissenter in the 1993 judgementThough Verma has not acted upon the memorandum, at least not publicly, a notice of impeachment motion against Punchhi for precisely the same charges are now doing the rounds among members of the Rajya Sabha.To initiate the removal of a judge from office under Article 124(4) of the Constitution, the move must be supported by at least 50 members of the Rajya Sabha or 100 members of the Lok Sabha. .preferred-source-banner{ margin-top: 10px; margin-bottom:10px;}The impeachment of a judge is a lengthy process. It requires investigation and proof of misbehaviour or incapacity of the judge, and, following that, support by a majority of the total membership of each House of Parliament and by a two-thirds majority of members present and voting. The impeachment move cannot make much headway when the Lok Sabha is dissolved. But it can surely put an ethical question mark on the person's appointment. The caretaker Government led by Prime Minister I.K. Gujral wrote a letter to Verma as early as November 16, gently reminding him of his constitutional obligation. There was no reply. Since then, Minister of State for Law Ramakant Khalap has, under the prime minister's instruction, met the chief justice and has interviewed the Supreme Court judges on a one-on-one basis. Gujral too has spoken to the chief justice. While the outcome of non-judicial parleys with judges are never disclosed, the Government feels that the opinion of the bench on the succession issue is, at best, divided. Khalap says that the President is "anxious" about the delay in recommendation and the prime minister is "anguished". Can such "anxiety" and "anguish" push the caretaker Government into starting a new constitutional battle? Perhaps. Khalap says if no recommendation comes by from the chief justice, the Government may have no option but to make a recommendation to the President on its own. Verma has not replied to a letter from the PM asking him to name his successor."In my opinion, the executive has enough discretion in choosing the next chief justice if the sitting chief justice remains silent." But that will be an outright contempt as the 1993 judgement (Advocates-on-Record Assn vs Union of India), while upholding the convention of the senior-most judge being appointed chief justice, says that he must be considered "fit" and the proposal should be "initiated in advance" by the incumbent chief justice. In wresting the initiative from the chief justice, and thus challenging the 1993 judgement, the Gujral Government may open a prolonged and potentially dangerous confrontation with the judiciary. Prolonged, because a solution to this problem must wait till a new government takes charge; till then, the Union Government can find little authority to submit its viewpoint before the court for a review of the issues in the 1993 judgement. The confrontation can also be dangerous as it may lead to judicial chaos as in Pakistan, where the chief justice was pitted against his own colleagues. Punchhi was a dissenter in the 1993 judgement, so the bench is already split on the chief justice's right. Courts lose the moral high ground when they begin speaking on key issues with a forked tongue. If Punchhi is passed up by the chief justice, the next seniormost, Justice S.C. Agrawal, can have his tenure only up to September 5, 1998. Punchhi is himself due for retirement on October 10. The other judges who can aspire to the top seat are Justice A.S. Anand, Justice S.P. Bharucha and Justice B.N. Kirpal, in that order. Justice S.P. Bharucha: Appointed: 1.7.92; retiring: 6.5.2002. Expected term as CJI: six monthsJustice S.C. Agrawal: Appointed: 11.1.90; retiring: 5.9.98. Has no chance after Punchhi's elevation.Justice A.S. Anand: Appointed: 18.11.91; retiring: 1.11.2001. He may have a three-year stint as CJI.Justice B.N. Kirpal: Appointed: 11.9.95; retiring: 8.11.2002. He can make it to the top for a year.However, this schedule of retirements and elevations hinges upon a strict adherence to the constitutional norms. With Verma's procrastination on the recommendation of his successor, and Khalap's threat to overturn the 1993 judgement, the norms are in need of being redefined. The effects of such lack of trust between these two arms of the republic are compounded by fissures in the judiciary itself. Appointments in the Supreme Court and the 18 high courts are now vetted by a collegium of two seniormost judges of the Supreme Court and the chief justice of the high court concerned, when it has to do with a high court appointment. At present, there are 50 vacancies in the high courts and two in the Supreme Court, reportedly caused by a lack of consensus within the collegium. And now the silence of the chief justice threatens to create an embarrassing vacancy at the very top.Published By: AtMigration Published On: Jan 5, 1998--- ENDS ---
