The new helmsman of the apex courts is non-doctrinaire.

By Sumit Mitra

On January 5, as the Supreme Court reopened after its winter vacation, the court of the chief justice of India was suddenly adjourned at noon. Chief Justice J.S. Verma drove from the domed building of the Supreme Court, where he has presided since March 25 last year, to another domed building, the Rashtrapati Bhavan, to tell President K.R. Narayanan -- at last -- of his choice of Justice M.M. Punchhi, the seniormost judge, as his successor after he retires on January 18. Earlier, on January 3, the much-awaited letter of his recommendation in favour of Punchhi reached Prime Minister I.K. Gujral, putting an end to two months of speculation on a deadlock over the chief justice's appointment. If Verma was moved by a petition of the Committee on Judicial Accountability (CJA), which demanded a probe against Punchhi on corruption charges and had been fanning an impeachment move against him in the Rajya Sabha, he could have recommended supersession. That would have put the President in a legal blind-alley as he appoints the chief justice only on the incumbent's recommendation.

Verma leaves instead on an anticlimactic note, writing to the prime minister that there was little substance in the allegations against Punchhi. That of course leaves the CJA -- led by legal stalwarts like former law ministers Shanti Bhushan and Ram Jethmalani -- fuming. The committee has criticised Verma and Gujral and has said that the power of "appointment, promotion, transfer and dismissal" of judges must be lodged neither with the executive nor with the chief justice.

It is precisely the issue of judges' powers over other judges that may mark the passing of the gavel -- and the consequent change of outlook -- in the tallest court. Says Kapil Sibal, top-flight senior counsel and president of the Supreme Court Bar Association: "With the transition, the era of the radical, overactive judiciary is over." A conspicuous manifestation of such radicalism was the authority exercised by the Supreme Court to transfer judges across the 18 high courts. Many senior counsels hold the view that the transferring power has over the years become a negative instrument and a powerful disincentive for legal talent to serve on the bench. It also turned the principle of seniority on its head, transferring the junior from one high court to another where he may rise to the top and thus become entitled to an appointment in the Supreme Court. It has already caused a beeline of young high court judges at the gate of the apex court. Besides, the high courts are now teeming with "outsider" judges who find it difficult to grapple with different customs, languages and manners. The top judges of most high courts are now from outside the state and, being new-comers, find it difficult to adjust to the local situation.

Punchhi belongs to the opposite pole of judicial thinking, having been a dissenting judge in the nine-judge bench of 1993 that put the chief justice at the fulcrum of judges' appointments and transfers. Verma was with the majority. Punchhi's views are also in favour of trimming the edges of doctrines like public interest litigation which has petered out as cheap populism, and of continuing the non-doctrinaire works of Verma, such as reducing the courts' arrears. If the Supreme Court becomes a zero-arrear court by 2000, from a greatly reduced arrear of 23,000 now, Punchhi, who will head it till October this year, will be respected for his contribution to the cutting edge with which the common man interfaces with the Supreme Court, and its downward multiplier effect.

© Living Media India Ltd