While the rulings of the outgoing Chief Justice of India B.N. Kirpal as a Judge on important issues have led to healthy debates, some of his administrative decisions have given rise to misgivings.
JUSTICE B.N. KIRPAL retired from service on November 8, after serving as the Chief Justice of India (CJI) for six months and as a Judge of the Supreme Court for seven years. While his rulings as a Judge led to healthy debates on some important issues, some of his actions (or inaction) as the administrative head of the judiciary led to misgivings. One specific instance is his inaction on the report of the former Chief Justice of Punjab and Haryana High Court, Justice Arun B. Saharya, into the alleged involvement of three High Court Judges in the Punjab Public Service Commission (PPSC) scam. Justice Saharya submitted his report to Justice Kirpal on August 26, about three weeks before his retirement. after a `discreet' inquiry.
After submitting the report, Justice Saharya restored to the three Judges, Justices Amarbir Gill, M.L. Singhal, and Mehtab Singh Gill, the judicial and administrative work he had withdrawn from them six weeks after he initiated the inquiry (Frontline, October 25). His decision stemmed from his conviction that any further action against the Judges could be contemplated only by the Chief Justice of India, under the law laid down by the Supreme Court in the C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee and Others case in 1995.
In paragraph 40 of that judgment, the court said: "The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the Chief Justice of India taking a decision, the matter should rest at that. This procedure would not only nip in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office-bearers of the Bar Association and group libel against all concerned."
The Bench comprising Justice K. Ramaswamy and Justice B.L. Hansaria, which delivered that judgment, hoped that the gap between proven misbehaviour and bad conduct inconsistent with the high office on the part of a non-cooperating Judge/Chief Justice of a High Court could be filled by self-regulation through in-house procedure, which would fill a constitutional gap and have a salutary effect.
Has Justice Kirpal, by his baffling silence on the Saharya report, defeated the very objectives of this in-house procedure? Clearly, the judgment does not contemplate that short tenures of CJIs could be an excuse for their inaction on an issue which affects the credibility of the judiciary.
It is possible to suggest that Justice Kirpal's silence might have been warranted because he found little substance in the allegations against the three Judges. Had it been so, observers say, he should not have kept his findings under wraps, in order to ensure transparency. It is also possible to argue that Justice Saharya's report may not have indicted the three Judges and as such no action by the CJI would have been necessary.
Although the report has not been made public, Justice Saharya told Frontline that "inaction" in the matter was "perhaps not in the fitness of things, because it was a serious matter." Justice Saharya added that the matter should be decided one way or the other, even though the Bhattacharjee judgment did not bind the incumbent CJI, to whom the High Court Chief Justice submitted his report, to take a decision before the expiry of his term in office.
Justice Saharya was convinced that the material which came into his hands was prima facie cause for concern. He had also concluded that the sifarish (recommendation) part of the racket involving the suspected role of these three Judges had not been investigated. He had withdrawn work from them on June 28, "pending fair and thorough investigation" into the allegations against them. He said that he might not have the powers to withdraw work from the Judges on the completion of a "discreet inquiry" into the allegations, but in that case the CJI ought to decide whether the three Judges can continue to work "pending fair and thorough investigation''.
If Justice Kirpal proved to be wanting in his response in this instance, he bowed to the dominant opinion within the court following criticism in the media over Mahanagar Telecom Nigam Limited's (MTNL) move to gift a mobile phone each, with a heavily discounted package, to the 26 Judges and three Registrars of the Supreme Court. The MTNL's justification for the move that it "desired better relations, and goodwill, with the Supreme Court'' only lowered the court's credibility.
In return for the MTNL's offer, the Supreme Court Registry had allowed it to install a microwave tower on the terrace of the Supreme Court's lawyers' chambers, owned by the court. Justice V.R. Krishna Iyer, eminent jurist and former Judge of the Supreme Court, criticised the court for having decided to accept the offer, calling it "judicial consumerism". Some senior advocates such as Fali S. Nariman and P.P. Rao expressed their dismay at the decision. Following the uproar, the Full Court of the Supreme Court decided to decline the offer and pay for the phones. The MTNL was in turn asked to pay the market rent, as applicable, for using the court's premises for its tower.
Another unsavoury episode was the outcome of the closed-door conference of the Chief Justices of High Courts, chaired by Justice Kirpal in New Delhi from September 13 to 15. The conference apparently resolved to approach the Union Government to have the Income Tax Act and other relevant laws amended to exempt from tax certain perquisites the Judges receive. It also decided to set up a special committee comprising three Chief Justices of High Courts to study a proposal that their salaries be made tax-free.
A Supreme Court Constitution Bench in 1999 rejected a High Court Judge's petition that sought the exemption of Judges' income from tax. Justice Kirpal himself was part of this five-Judge Bench, which was headed by the former Chief Justice of India, Justice S.P. Bharucha. A full court meeting of Supreme Court Judges had rejected a similar proposal two decades ago.
Justice Kirpal's tenure will, however, be remembered for some landmark verdicts delivered by him as part of a Bench. A few weeks before his retirement, the Constitution Bench headed by him tendered the opinion sought by the President under Article 143 of the Constitution on the scope of Article 174 vis-a-vis Article 324, approving the Election Commission's move to defer the Gujarat Assembly elections beyond October, that is, six months after the day of the last sitting of the dissolved Assembly. The judgment by the 11-member Bench, headed by him, in the case involving the rights of minority educational institutions has been hailed by many others as a balanced verdict.
In the ongoing case of contempt of court against Karnataka Chief Minister S.M. Krishna and others for wilfully disobeying the orders of the court to release Cauvery waters to Tamil Nadu, the Bench headed by Justice Kirpal appeared to be concerned more about the implications of Karnataka's refusal for the federal set-up than about the merits or otherwise of Karnataka's claims. The Bench prima facie found Krishna guilty of contempt of court and this forced Karnataka to start releasing water to Tamil Nadu.
A three-member Bench headed by Justice Kirpal imposed exemplary damages on some delinquent organisations for damaging rocks in Himachal Pradesh by painting advertisements, after ordering the creation of a Rs.5-crore corpus for restoring the rocks. The Bench ordered the Himachal Pradesh government to pay Rs.1 crore towards the corpus, for its passive role, after it found that out of a total of 180 sites in the Kullu-Manali area, 168 had suffered irreparable damage by the painting of advertisements by eight large companies and 20 smaller ones. The Bench held that painting of the centuries-old glacial rocks was in violation of forest laws and the right to environment.
The decision of a Bench headed by Justice Kirpal on September 9 to dispose of the Narmada Bachao Andolan's petition, seeking a stay on the construction of the Sardar Sarovar dam, caused disappointment in many people. The Bench refused to interfere with the construction on the grounds that the Grievance Redressal Authority (GRA) had already been put in place. The Bench did not deal in detail with the thrust of the petition that the official claims on the rehabilitation and resettlement of the project-affected families in accordance with the October 2000 Supreme Court judgment were hollow.
JUSTICE G.B. Pattanaik, who succeeded Justice Kirpal as the CJI, has served as a Judge of the Orissa High Court and later as the Chief Justice of the Patna High Court, before his elevation to the Supreme Court in September 1995. His stint at the CJI's post will be a brief one, as he has to retire on December 19. He is known for his strong views on the issue of contempt of court; he was part of the two-Judge Bench that convicted noted writer and social activist Arundhati Roy to a day's simple imprisonment for contempt of court in 2001. The judgment and the sentence angered civil rights groups and objective observers who suggested restraints on the court's power to punish on charges of criminal contempt.
Justice Pattanaik, after assuming charge as the CJI, called for strong Chief Justices in High Courts to check corruption in the judiciary.