When the affable A.S. Anand yielded place as the Chief Justice of the Supreme Court to the acerbic S.P. Bharucha on November 1, the legal community was struck by the contrast between the two justices. The easy-going Anand had a good rapport with the government and was regarded by the bar as accommodating. The new Chief Justice of India (cji), on the other hand, is not only known to keep a distance from the ruling dispensation but is a martinet who goes strictly by the rulebook.
Observes lawyer Kapil Sibal: "Justice Bharucha is as upright as his posture. He genuinely believes in the rule of law and is least bothered about political equations in the country." Thanks to a reputation for unimpeachable integrity, Bharucha commences his six-month, six-day tenure saddled with a burden of expectations. Says senior lawyer Shanti Bhushan: "We hope he can at least begin the process of putting the judiciary back on the rails, at a time when corruption has seeped in at all levels."
On the face of it, the new cji and Union law minister Arun Jaitley might appear to make a good team, but many say that's unlikely. Bharucha, say lawyers, is zealous about the judiciary's independence and believes it must be respected. Jaitley has been described as "a sophisticated version of H.R. Bharadwaj", law minister in Narasimha Rao's cabinet, with a tendency to interfere in matters administrative. In fact, even as Anand's farewell tea party was in progress, rumours that Bharucha might be eased out before his term ends and offered a place in the International Court of Justice were doing the rounds.
One reason why Bharucha doesn't enjoy a cosy relationship with the establishment is that he's never let himself be pressurised by any government. This is a reputation he earned even as chief justice of the Karnataka high court. Points out a senior law ministry official: "The perks of office mean nothing to him." In fact, he is the least-travelled judge of the Supreme Court and on the few occasions he's gone abroad, he made it a point to pick up his own tabs.
Despite having delivered politically sensitive judgements, Bharucha is regarded as being strictly apolitical. Neither the left nor the right can claim him for their own, although he's seen as having a liberal bent of mind. In the Narmada Bachao Andolan case (1999), when writer Arundhati Roy was pulled up by the Supreme Court for her writings against its judgement on the contentious Narmada dam issue, Bharucha delivered a dissenting judgement.
"While I record my disapproval of the statements...I am not inclined to take action in contempt against Medha Patkar, Shripad Dharamadhikari and Arundhati Roy because the Court's shoulders are broad enough to shrug off their comments and because the focus should not shift from the resettlement and rehabilitation of the oustees," he observed.
Lawyers might fear him but also see him as an ideal judge: scrupulously fair, never swayed by public opinion or extra-legal considerations and a strict constructionist. In the recent J. Jayalalitha case, his fierce commitment to both the letter of law and clean public life came to the fore. Ordering her removal as chief minister, he held that the "people's mandate" could not override the Constitution, which clearly disqualified her from holding office. He observed that given "the mass scale corruption which has corroded the core of elective democracy, it is high time Parliament considered the question of bringing conviction under the Prevention of Corruption Act as a disqualification under section 8(1) of the Representation of People Act".
One of his most celebrated judgements is on the Veerappan case. He ruled against the dropping of charges against prisoners in Karnataka and Tamil Nadu jails, demanded by the dacoit Veerappan as part of the ransom for releasing cine star Raajkumar. Castigating the state governments for being soft on the dacoit, he said: "What causes us the gravest disquiet is that when, not so very long back, as the record shows, his gang had been considerably reduced, Veerappan was not pursued and apprehended." If Abdul Karim, father of one of the dacoit's victims, had not approached the Supreme Court, "a miscarriage of justice would have become a fait accompli", he added.
Prior to demitting office, Anand insisted on a "secretarial assistance" of Rs 10,000 per month (plus enhanced medical facilities) for retired cjis. Law ministry officials note that this was not the kind of perks that Bharucha would have recommended. The new cji is seen as a bit of a 'sahib' who likes everything to be proper. He is not much of a socialiser, stays aloof and doesn't mingle much outside his own community.
The 64-year-old Bharucha had a thriving practice before he became additional judge in the Bombay High Court in 1977. He's affluent, judging from his purchase of a rather expensive apartment in Bombay last year. But he has always been free of controversy. And those raising allegations against him may not find any takers.
Bharucha lacks Anand's interpersonal skills, though, and is known to crack the whip on counsel appearing before him. While the former cji could put the most nervous junior counsel at ease, the incumbent can intimidate even seasoned lawyers. He's short-tempered in court and, on more than one occasion, has been known to exhort senior counsels to get to the point. "He's a great judge. Had he learnt to curb his impatience, he might have been an even greater judge," admits Shanti Bhushan. To be fair, when he's convinced that a lawyer knows his case, he can be very encouraging.
Bharucha's known to be quick on the uptake, very clear in his pronouncements and has a great deal of common sense and a gift for simplifying complicated legal issues (particularly when related to taxation law on which he is an expert). "He's technically very sound and his understanding of points of law is excellent," says lawyer R.K. Anand. Some, in fact, see him as being a shade too technical, as in the jmm case, when he ruled that MPs who took bribes enjoyed immunity from legal action while bribe-givers did not.
Cast in the mould of the traditional British judge, Bharucha is rather conservative and therefore not a great believer in judicial activism. "There'll be a lot less public interest litigation during his tenure," observed one senior counsel. "That's not to say his heart is not in the right place. It is," Shanti Bhushan is quick to point out.
Among the ticklish issues he's going to have to face are the appointments and transfers of judges. During his long innings, Anand filled 16 vacancies in the Supreme Court, attracting considerable criticism. Seniority as a consideration was abandoned with most appointees superseding their colleagues. One appointee superseded 18 judges!
In 1998, Justice Bharucha had ruled that a collegium comprising the four senior-most judges of the Supreme Court, including the cji, should determine appointments. If two judges dissent, or if the cji himself does not agree, the recommendation isn't valid.As for transfer policy, the rule espoused by former cji M.N. Venkatachaliah, that one-third of high court judges were to be from outside the state, is not currently being followed. Of the 54 judges transferred by Venkatachaliah, 30 went back to their states during Anand's tenure. The government could, if it chooses, stall appointments and transfers.
But more than transfers, the main challenge for Bharucha would be to stem the erosion of the judiciary's credibility. Something he cannot do by example alone.