A new Chief Justice of India

Justice B.N. Kirpal, who succeeds Justice S.P. Bharucha as the Chief Justice of India, is known for his pragmatic style.

THERE is every possibility that the year 2002 will be remembered in India's judicial history as one in which the Supreme Court had four Chief Justices. The change of incumbents in quick succession is because of the short tenures of three of them - Justice Sam Piroj Bharucha, who succeeded Justice A.S. Anand on November 1, 2001, and who is retiring on May 6, 2002; Justice Bupinder Nath Kirpal; and Justice G.B. Pattanaik. Justice V.N. Khare, who will most likely succeed Justice Pattanaik on December 20, will hold office until May 1, 2004. Justice Kirpal, who succeeds Bharucha on May 6, will retire on November 8, while Justice Pattanaik, who will succeed him, will retire on December 19, after 40 days in office. Although in the past Chief Justices of India (CJIs) have had such abnormally short tenures, there is some concern within the legal fraternity that a short tenure could indeed become an excuse for the incumbents to postpone action on long-pending judicial reforms, or even to avoid subjecting themselves to meaningful accountability.

Short-tenure Chief Justices may well be inevitable in the absence of a judicially acceptable alternative to the principle of seniority (determined with reference to the date of appointment to the Supreme Court), and the retirement age of 65, which govern the selection and tenure of a CJI.

Whatever be the merits or otherwise of the present system, the CJI's role as the head of the judiciary will doubtless come under scrutiny, howsoever short his tenure. Each new Chief Justice, within the constraints he is placed with, seeks to realise his ideas on managing the judiciary or set the agenda for his successors, to the extent possible. The occasion of appointment or retirement of a Chief Justice is also an occasion when one can review freely his contribution as a Judge.

In this context, Justice Bharucha may well be remembered for his refreshing ideas on the role of the judiciary, expressed outside the courtroom. When he assumed office on November 1, 2001, there were about 85 matters pending for hearing by a five-Judge Bench and several others pending before larger Benches. Some of these matters were filed in the Supreme Court almost 20 years ago.

He thought it fit, therefore, to constitute immediately a Constitution Bench, and he proposed that for the rest of his term there would be a permanent Bench of five or more Judges. He was conscious that having a Bench in continuous operation would necessarily mean that the disposal rate of appeals and writ petitions before smaller Benches would decrease and that the overall arrears would increase. This in Justice Bharucha's view - as articulated during his speech on Law Day in the Supreme Court on November 26, 2001 - was of little overall consequence because the principal function of the Supreme Court is to hear and decide constitutional issues and resolve conflicts on the interpretation of law between the High Courts.

True to his promise, the Supreme Court, during his term, disposed of several cases before the Constitution Bench. Justice Bharucha's success in this regard stems from the substantial reduction of arrears in the Supreme Court over the years. The pendency of cases came down from 1,04,936 in 1991 to 21,995, when Justice Bharucha assumed charge. Justice Bharucha's predecessors did not feel the need for a Constitution Bench permanently in session because there was a huge backlog of arrears involving criminal appeals, important service matters and landlord-tenant disputes, which took precedence over cases referred to the Constitution Bench, in terms of urgency.

Computerisation of cases, clubbing and hearing of similar cases and other innovative measures brought down the pendency in the Supreme Court and this enabled Justice Bharucha to constitute an 11-member Bench, headed by Justice Kirpal, to hear from April 2 a batch of about 200 petitions in order to interpret afresh the meaning and content of the expression "minorities" in Article 30(1) of the Constitution and their right to set up and administer educational institutions. This is the second time in over 30 years that an 11-Judge Bench has been constituted. It will decide important questions of law relating to the "minorities", "religion" and "education". An 11-Judge Bench, constituted during the tenure of Chief Justice M.M. Punchhi, was disbanded before it could complete its assigned task.

As the CJI, Justice Bharucha expressed his concern on more than one occasion over the mounting arrears of cases in the High Courts and the District Courts. For this situation, he blamed the State governments' unwillingness to provide the finances required for an across-the-board increase in the number of Judges. In the Supreme Court, which has a strength of 26, no vacancy of a Judge is left unfilled for long, as the collegium of the CJI and two senior Judges promptly finalises its recommendations to the government about the proposed nominees. However, this is not the case with the High Courts, which had nearly 170 vacancies in November 2001.

As per the Supreme Court judgment in the Second and Third Judges Case, the government places all the material with regard to the proposed nominees for the posts of Judges in the High Courts - after the Chief Justice of the High Court concerned sends in his proposal - before the CJI for his advice. The CJI would, in consultation with two senior-most Judges of the Supreme Court, form his opinion in regard to a person to be recommended for appointment. The CJI and the rest of the collegium are to take into account the views of the Chief Justice of the High Court and of those Judges of the High Court who have been consulted by the Chief Justice as well as the views of those Judges of the Supreme Court who are conversant with the affairs of that particular High Court.

It is said that disagreements among the members of the collegium, owing to their regional and other biases, regarding proposed nominees for Judges' posts in the High Courts, have often resulted in the collegium's failure to finalise the recommendations to be sent to the government for approval and this has caused undue delay in filling the vacancies.

JUSTICE BHARUCHA headed the nine-member Bench in the Third Judges Case in 1999, which tendered advisory opinion to the President under Article 143 clarifying certain aspects of the Supreme Court's judgment in the Second Judges Case (1993) after broadly upholding it. It remains to be seen whether Justice Bharucha will throw light on the effectiveness of the collegium method after his retirement. More than anything else, Justice Bharucha's observations on corruption in the judiciary have led to considerable misgivings. He said, in a joint conference organised by the Bar Council of India and the State Bar Council of Kerala on December 22, 2001, at Kollam, Kerala, that "more than 80 per cent of the Judges in this country, across the board, are honest and incorruptible." He went on: "It is that smaller percentage that brings the entire judiciary into disrepute. To make it known that the judiciary does not tolerate corruption in its ranks, it is requisite that corrupt Judges should be investigated and dismissed from service."

Justice Bharucha then said that while in the case of the subordinate judiciary disciplinary control lies with the High Court, in the case of the higher judiciary the only recourse in law to deal with corrupt Judges is impeachment. He then deplored the fact that "impeachment is a cumbersome process and which, as a recent instance showed (probably hinting at the developments concerning Justice V. Ramaswami in 1993) may not achieve the desired result for reasons that are political." Alternatively, he claimed that the Supreme Court and the High Courts had attempted to evolve an informal procedure to meet the situation but it was yet to be tested. In his Law Day address, he clearly suggested that the only alternative was internal, namely the in-house procedure, and that he would like to see it enforced whenever the conditions to do so existed. He did not elaborate what these conditions were.

Again, while inaugurating the State Lawyers' Conference in Pune on February 9, Justice Bharucha said that in his experience as a senior Judge, none in the Bar fought corruption. "Allegations are made when the lawyer has lost or when the Judge is to be further elevated and devoid of all particulars - that is all. It does speak too well of members of the Bar," he said.

The Bar Council of Delhi took these observations seriously and in its resolution asked if the CJI was suspicious of the integrity of the judiciary, then what the reaction of the general public would be. Senior advocate and former Union Law Minister Shanti Bhushan, in his letter to the Chief Justice, sent on March 9, pointed out that corrupt Judges, much more than the acts of any other person, scandalise the courts and lower their authority in the eyes of the public. He, therefore, suggested that in the absence of any other system, the Contempt of Courts Act, 1971, provides a procedure to deal with corrupt Judges.

"The apex court owes not only to itself but also the judiciary as a whole and even more so to the people of India to identify these corrupt Judges and institute suo motu proceedings for criminal contempt against them," he wrote. Shanti Bhushan's letter, however, failed to provoke a debate, let alone a response from the judiciary. His suggestion, noted a senior advocate, was logical and was an articulation of his anguish, but it was far-fetched.

Sections in the Bar feel that Justice Bharucha was not blind to the fact that there was corruption in the judiciary, but it was unrealistic and unreasonable to expect that he could change the system radically in six months. It is felt that he has lent stature, respect and credibility to the office of the CJI and that he has restored a certain degree of faith in the judicial system by being frank about some of its maladies.

Justice Kripal's tenure may well mark a continuity in the tradition of the CJIs expressing their anguish and helplessness over the judiciary's concerns. Despite his relatively short tenure, he has raised some expectations in the Bar in view of his pragmatic style, marked by perseverance. His understanding of judicial administration and the role of the bureaucracy has often helped ensure enforcement of the court's orders. His preparedness and thoroughness in going through petitions has endeared him to the Bar, which considers him a bright and sharp Judge.

Justice Kirpal practised as an advocate before being elevated as Additional Judge in the Delhi High Court at the age of 42 in 1979 and later as a permanent Judge in 1983. Before his appointment as Judge, he worked as an additional Standing Counsel for the Income-Tax Department and thereafter as a Central Government Standing Counsel. He was the Chief Justice of the Gujarat High Court from December 1993 to September 1995, when he was elevated as a Judge of the Supreme Court.

It was Justice Kirpal who, as the head of the three-member Bench, disallowed through an interim order any symbolic puja or religious activity by the Vishwa Hindu Parishad at the 'undisputed' acquired area in Ayodhya on March 15. The order was widely hailed as a victory for secularism. However, some of his other judgments have evoked mixed reactions. His ruling on the conversion of diesel-run buses in the National Capital Region to compressed natural gas (CNG) mode has resulted in undue hardship to commuters, who now have to bear with a reduced number of buses. His order requiring the shifting of nearly one lakh polluting industrial units from Delhi's residential areas left several people jobless but kept the green lobby happy.

Yet, in the Sardar Sarovar Project case, Justice Kirpal, who along with the then Chief Justice A.S. Anand wrote the majority judgment allowing the raising of the height of the dam, was oblivious to the environmental hazards posed by the project, which the dissenting Judge, Justice Bharucha, pointed out.

Justice Kirpal's judgment dismissing the Bharat Aluminium Company Limited Employees Union's petition challenging the Centre's move to disinvest in BALCO was considered anti-labour. He ruled that the decision to disinvest and transfer 51 per cent of the shares of BALCO was purely an administrative decision relating to the economic policy of the state and any challenge to the same at the instance of a busy-body cannot fall within the parameters of public interest litigation. In another case, he held that the Contract Labour (Regulation and Abolition) Act, 1970, did not enable the absorption of contract labour by the employer in regular work once the abolition notification under that Act was issued. Such decisions have made some people describe him as a conservative Judge.