A new Chief Justice

Justice S.P. Bharucha's appointment as the Chief Justice of India raises expectations of an improvement in the area of judicial accountability.

IF the performance of a Chief Justice of India is generally measured in terms of his contribution to improving the justice delivery system and his relationship with the Bar, Justice A.S. Anand fulfilled these creditably during his three-year tenure, which comes to an end on October 31.

The relationship between the Bench and the Bar in the past three years was good, barring certain instances where some members of the Bar levelled allegations about Justice Anand's conduct during his previous tenures. Even his critics appreciate him for his courtesy, discipline and readiness to meet the requirements of the Bar. There is no dispute over the fact that he was a fine Judge and that his judgments were well-written. Despite innumerable demands on his time, he went through his brief meticulously and was up-to-date on case law.

Generally, for a Chief Justice of India administrative and leadership roles take precedence over judicial work. But Justice Anand was different in that he sought to strike a balance between these requirements. An office-bearer of the Supreme Court Bar Association said: "He was basically a Judge. He would be out of Delhi during weekends to take part in functions organised in the High Courts. But he would be back in the Supreme Court on Monday, the admission day, giving satisfaction to the advocates that he had read the papers thoroughly."

Even as the number of cases filed in courts increased during his tenure, the rate of their disposal showed remarkable improvement. He motivated the High Courts to dispose of cases effectively by adopting methods such as clubbing of matters. For instance, he told the Chief Justices of High Courts that the cases of senior citizens should get priority in cause lists. This practice has more or less been institutionalised in the entire country now.

However, Justice Anand's tenure will be remembered more for the controversies that broke out than for his performance. Ram Jethmalani quit as Union Law Minister mainly because he publicly aired his differences with the Chief Justice. Subsequently, he alleged that Justice Anand, during his tenure as a Judge of the Supreme Court, had misused his office in a case involving some of his family members, relating to a land dispute with the Madhya Pradesh government. Fali S. Nariman, a senior lawyer and Rajya Sabha Member, sought the Supreme Court's intervention to allay the misgivings arising out of this case.

Jethmalani also sought an investigation into the allegation that Justice Anand concealed his real age at the time of his appointment as a Judge. Justice Anand rebutted the allegation by providing, through the Union Ministry of Law and Justice, documentary proof that he was born on November 1, 1936, and not in 1934 as alleged by Jethmalani. In a contempt case that followed, the Supreme Court ordered an investigation into how a document showing Justice Anand's date of birth as 1934 surfaced in the first place.

Shanthi Bhushan, senior lawyer and former Union Law Minister, made serious allegations of misuse of office by Justice Anand during his tenures in the Jammu and Kashmir High Court, the Madras High Court and the Supreme Court. In the absence of any internal mechanism to investigate such complaints, the Supreme Court was perhaps helpless in effectively guarding its credibility and prestige. Individual members of the Bar, however, rose to Justice Anand's defence, arguing that any attack on the Chief Justice would amount to an attack on the institution of judiciary and that, therefore, certain old cases that have been disposed of should not be reopened on the basis of suspicions that he might have influenced the course of justice in his favour.

A conference of the Chief Justices of the High Courts, which was presided over by the Chief Justice of India, adopted a document called "Restatement of Values of Judicial Life" - a code of conduct for judges. The participants resolved to declare their assets and set up an in-house mechanism to hear and dispose of complaints against judges. The lack of progress in implementing these resolutions during Justice Anand's tenure was a disappointment to those who value the principles of judicial accountability and transparency.

THE appointment of Justice Sam Piroj Bharucha as the next Chief Justice of India has evoked expectations that he would set the judiciary in order and act against judges who are seen to be corrupt. Justice Bharucha, who is hailed as an upright and honest judge, is a stickler for propriety. These very attributes have perhaps given him an image among some lawyers of being abrasive and impatient at times. His critics also say that his interpretation of the law and the Constitution is very often somewhat technical.

Born on May 6, 1937, Bharucha enrolled as an advocate in the Bombay High Court on July 28, 1960. He was appointed an Additional Judge of the Bombay High Court on September 19, 1977 and a permanent Judge on April 3, 1978. He took over as the Chief Justice of the Karnataka High Court on November 1, 1991, and as a Judge in the Supreme Court on July 1, 1992.

His dissenting judgment in the Sardar Sarovar Project case in October 2000 is remembered for its forthrightness and sensitive approach to the sufferings of the project-affected families. He expressed himself against the construction of the project on the ground that the authorities ignored legitimate environmental and resettlement standards. In 1995, Justice Bharucha had ordered immediate stoppage of work at the dam site.

In a landmark judgment, Justice Bharucha prevented the governments of Tamil Nadu and Karnataka from releasing the associates of sandalwood smuggler Veerappan from jail in return for the release of his hostage Rajkumar, the popular Kannada film actor. Eventually, Veerappan released Rajkumar. (Of the 123 people who were arrested under the Terrorist and Disruptive Activities (Prevention) Act, or TADA, for their alleged complicity with Veerappan, 109 were acquitted and 14 convicted by a Special Court in Mysore on September 29, 2001.)

In 1994, Justice Bharucha gave another minority judgment (along with Justice A.M. Ahmadi) on the President's reference under Article 143 asking the Supreme Court to determine whether a Ram temple existed at the site of the Babri Masjid and whether it had been destroyed before the construction of the Masjid in 1528. Both the majority and minority judgments refused to give an opinion under Article 143, but for different reasons. While the minority judgment found the Presidential Reference itself biased and unfair, the majority found it incomplete and said that it was unnecessary to answer it since the suits before the trial court had revived. The minority judgment was noted for its clear commitment to the principle of secularism, a basic feature of the Constitution. It found the Acquisition of Certain Area at Ayodhya Act, 1993 to be invidious and unfair and struck it down. The majority judgment struck down only the provision that sought to abate the suits.

In 1993, with the ruling of a nine-member Constitution Bench of the Supreme Court in Advocates-on-Record Association vs Union of India, the power to appoint judges of the higher judiciary passed into the hands of the judiciary and the role of the executive in the matter became a formal one. On a reference made by the President under Article 143, this judgment was reviewed in 1998 by another nine-member Bench, which was headed by Justice Bharucha. This Bench unanimously reaffirmed the conclusions of the majority judgment in 1993 but with some changes. It held that the Chief Justice of India and his four seniormost colleagues (rather than two, as per the 1993 decision) would constitute a collegium for the purpose of appointment of judges to the Supreme Court. Supreme Court judges hailing from the High Court to which the proposed nominee belongs must also be consulted, it said. The Bench offered a dependable mechanism not only for the appointment of judges but also for the enforcement of a code of conduct for them.

In his judgment unseating Jayalalithaa as the Chief Minister of Tamil Nadu, Justice Bharucha distanced the Constitution Bench from the ethical and moral issues raised by the petitioners who challenged her appointment despite her disqualification under the Representation of the People Act (RPA). He interpreted Article 164(4) of the Constitution to mean that only those who are qualified to become legislators could be appointed Ministers. The Bench rightly read the implied limitation in the Article, consistent with the Supreme Court's judgment in the Keshavananda Bharati case.

However, when he examined the question whether Jayalalithaa was disqualified under the RPA, Justice Bharucha appears to have made a distinction between suspension of sentence per se and suspension of the "execution" of the sentence under Section 389 of the Code of Criminal Procedure. Experts say that no such distinction is intended either in the Code or in practice. He suggested that it is not within the power of the appellate court to suspend the sentence, and that it can only suspend the execution of the sentence pending the disposal of the appeal. Thus he found that the Madras High Court had only suspended the execution of the sentence against Jayalalithaa, who had been convicted and sentenced for three years by a trial court; hence, it did not alter or affect the conviction and the sentences imposed on her and she remained disqualified from seeking legislative office under Section 8(3) of the RPA.

In the P.V. Narasimha Rao case relating to the charge of bribing of Members of Parliament belonging to the Jharkhand Mukti Morcha, Justice Bharucha, along with Justices S. Rajendra Babu and G.N. Ray, upheld the immunity of MPs from legal proceedings relating to their speeches or votes in Parliament. Justice Bharucha was clearly unwilling to read limitations in Article 105(2) of the Constitution, which provided immunity to MPs from court proceedings in respect of anything said or any vote given by them in Parliament. The majority on the Bench held that all those MPs who had voted against the no-confidence motion against the Narasimha Rao government in July 1993 enjoyed protection under Article 105, even though some of them allegedly took bribes to vote in a particular way.

In their dissenting judgment, Justices S.C. Agrawal and A.S. Anand held that Article 105 was not intended to protect the corrupt, but to defend the integrity of the legislative process and the independence of Parliament.

Justice Bharucha will hold office till May 6, 2002, when he will complete 65 years, the age of superannuation. The age prescription and the principle of seniority that governs the appointment of the Chief Justice of India have meant short tenures for some Chief Justices, leaving little scope for them to bring about meaningful reforms in the judiciary. A solution perhaps lies in amending the Constitution so as to provide for a minimum tenure of two years for the Chief Justice of India.