Millennium Post

Judge’s command performance

On Monday last, hearing a public interest litigation, a bench of Supreme Court headed by Chief Justice RM Lodha and Justices Kurian Joseph and Rohinton F Nariman as members commented that judges were not perfect as they came from the same imperfect society. ‘No one is perfect. Society is not perfect. And we come from the same society. We too are not perfect,’ said the distinguished bench in the tone of anguish.

There has been a problem with the functioning of the judiciary in the recent years and corrective measures too have been taken. Creation of the collegium of judges to make appointments to the High Court and Supreme Court benches was a part of this process. In the course of hearing the petition, Justice Lodha made three land mark observation -- If the collegium has failed, then its products (the judges) too are failures; As an institution the collegium had its limitations in selecting persons and verifying antecedents; There is a misleading campaign to defame the judiciary and repeated attempts have been made to spread incorrect information.

The observations made by Justice Lodha and his brother judges have to be viewed in perspective of the fact that Justice Lodha is from the first batch of judges selected through collegium and so were the two others, from later batches. The attempt by former Supreme Court judge and presently chairman of the Press Council of India Justice Markandey Katju to tar the collegium process would naturally raise the hackles of any self-respecting judge.

The fact that Justice Lodha and his colleagues decided to defend the collegium system the day government brought a bill in parliament to replace it, only goes to show the lack of communication between the executive and judiciary. The friction between the two arms first came to the fore over the appointment of senior counsel Gopal Subramanium to the Supreme Court bench, forcing withdrawal of candidature by the jurist. And the fact that Justice Markandey Katju has decided to fish in troubled waters most belligerently only seconds the thought that the government and the judiciary are involved in indirect sparring.

In his latest avatar, it’s difficult to decipher whether Justice Katju is actually playing the role of a whistle blower or acting as a Trojan horse doing command performance for the government. In his first blog on 20 July this year he alleged that in the year 2004, a corrupt judge was given an extension and later a permanent post due to strong political backing. He wrote that he himself raised concern about the conduct of this judge and after due probe from CJI, his doubt was found to be true. However, this judge had political backing from a political party in Tamil Nadu, and this party threatened to withdraw the support to the UPA government if this corrupt judge was not given an extension. He also alleged that a prominent Congress leader arranged extension to save the UPA government.

This blog created an atmosphere of doubt about the integrity of judges and ability of the collegium system, which selected the judges, to withstand political pressure. Having tarred the image of three chief justices, Katju managed to bring the highest office in judiciary under scrutiny and it could not be a mere coincidence that this was much to the glee of the government, which for long has been pursuing agenda for replacing the collegium system with the national judicial commission. After his blog post, several parties and social groups raised concern over political interference in posting of the judges, giving the government a go-ahead to pursue its agenda.

However, there were some doubting Thomases, like your reporter, who could not believe Katju having an ‘outburst’ without having a cause in his mind which he thought to be just. This was not the first time that he was raising an issue, which gave him ample space both on the airwaves and also in the newsprint.

His activism has ranged from appealing to the Maharashtra governor K Sankarnarayan seeking pardon for Sanjay Dutt on humanitarian grounds under Article 162 of the Constitution after the apex court had upheld his five-year sentence for having in his possession prohibited weapons to appealing to Pakistan to consider granting remission to Gopal Dass, an Indian prisoner detained in the Lahore central jail for 27 years. While he did not succeed in the former, Paksitan did pay a heed to his appeal.

Katju’s second blog on corruption in judiciary was posted on Sunday last, this time dragging in the name of former Chief Justice SH Kapadia for his inability to fight corruption. Kapadia enjoys a very high reputation for his integrity and putting his name under a cloud certainly did great damage to the image of judiciary as whole. Kapadia pooh-poohed Katju’s claims that he ever ordered telephone tapping of any of the judges.

Again it could not be just mere coincidence that the morning after Katju’s blog, Law minister Ravi Shankar Prasad tables the National Judicial Appointments Commission Bill, 2014, and the 121st Constitution Amendment Bill (Insertion of new articles 124A, 124B and 124C) in the Lok Sabha.

While the Constitutional Amendment Bill scraps the collegium system and establishes a six-member body for appointment of judges, the other Bill lays down the procedure to be followed for appointment and transfer of judges.

Katju demits office as Press Council chairman in October. Whether his blogs will earn him another tenure or office with an Ambassador car and a bungalow in Lutyens’ Delhi is something which would be closely watched.

The author is with Centre for Reforms, Development & Justice, and is Consulting Editor, Millennium Post  
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