The Telegraph
Tuesday , July 22 , 2014
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Delay questioned but lens on judiciary welcomed

Markandey Katju

New Delhi, July 21: Justice Markandey Katju, a former Supreme Court judge and chairman of the Press Council of India (PCI), has stirred a hornet’s nest alleging corruption and capitulation in the highest echelons of the judiciary, but summoned a cloud over his own head in the process.

In a controversial revelation, Justice Katju has said Supreme Court judges allowed a lower judge of Madras High Court to be confirmed and promoted despite adverse Intelligence Bureau reports on him. A three-judge Supreme Court panel had found the adverse report true and recommended that the judge be dropped.

However, Justice Katju has alleged, the DMK, a coalition partner in Manmohan Singh’s first UPA government, brought political pressure to bear and ensured the judge was not merely spared but also confirmed.

Former Prime Minister Singh today said he had nothing to say as former law minister H.R. Bharadwaj had already clarified the issue, PTI reported. Bharadwaj had said no “undue favours” were given to the judge and proper procedure was followed.

The AIADMK raised the issue in the Lok Sabha and asked the government to identify the judge. But the government avoided making a response.

Although Justice Katju did not name the judge, it was clear he was referring to Justice Ashok Kumar who died in 2009.

But questions have been shot at Justice Katju himself: Why now? Why was he silent all these years? Some are not averse to wondering if Justice Katju has spoken out of personal motive: Is this an attempt to curry favour with the new dispensation?

Justice Katju has rubbished questions on both his timing and possible motive. But others in the legal fraternity remain sceptical.

Senior counsel Dushyant Dave, for instance, agreed Justice Katju had raised critical issues, but said he was “surprised” why the former judge had remained silent so long.

Justice Katju has also alleged that three former Supreme Court Chief Justices — R.C. Lahoti, Y.K. Sabharwal and K.G. Balakrishnan — continued with Justice Kumar in Madras High Court despite the latter facing adverse reports for alleged corrupt practices.

Justice Katju, himself chief justice of Madras High Court till 2005, says he had brought Justice Kumar’s misdemeanour to the notice of the Supreme Court. According to him, then Prime Minister Manmohan Singh “panicked” under threats from the DMK and action against the judge was stalled.

Some members of the Supreme Court Bar wonder why Justice Katju has raised the issue a decade after, why not when the issue was still relevant. As chief justice of Madras High Court, Justice Katju could have taken up a high moral stand by giving a dissent note and making his views public, some at the Bar point out. “Why should he raise the issue now when the said corrupt is dead?” asked a former solicitor-general of India.

Speaking to The Telegraph, Justice Katju, however, trashed allegations of any self-motive or that he was aspiring for any post.

Katju was appointed chairman of the PCI on October 5, 2011, for a three-year term which ends less than three months from now.

He suggested that an inquiry be ordered to probe the veracity of his allegations.

“At the relevant time, I informed the then Chief Justice of India (Lahoti). I did what I could. At the relevant point of time, I had informed the CJI and tried my best to stop his confirmation as a permanent judge,” Justice Katju said.

Asked why he did not put up any dissent note, Justice Katju said: “Primacy vested with the Supreme Court collegium.” Meaning that even if he had put a dissent note, the collegium’s view would have prevailed.

Rejecting speculation that he was angling for another sinecure, Katju said: “There is no motive…. The question is whether the allegations are true or not. If the allegations are false then you can criticise me. An inquiry can be ordered.”

While Justice Lahoti could not be reached, another former CJI, Justice Balakrishnan, said that after some adverse reports, the judge was transferred to Andhra Pradesh High Court.

But he denied knowledge of any correspondence from Justice Katju to the collegium on the issue.

“I have no knowledge of any files or correspondence from Justice Katju on the issue. There were some reports that the said judge was close to some political leadership in Tamil Nadu, so I took a decision to transfer him,” Justice Balakrishnan said.

Several senior members of the Bar have rallied behind Justice Katju saying that his motives, if any, were a secondary matter and his revelations had exposed the politicisation of the judiciary.

P.H. Parekh, senior counsel and president of the Supreme Court Bar Association (SCBA), also felt that there should be an inquiry into Justice Katju’s allegations.

“The first and foremost question is whether the allegations are true or not. If they are true, it is a serious blow to the collegium system. There are many judges of Supreme Court, mainly retired, who believe that the collegium system is subjective and, therefore, some improvement is required. Many eminent judges of high courts who deserved to come to Supreme Court have not come,” Parekh said.

“As far as motive is concerned, it is not possible to say anything. The government has the power to constitute an inquiry. It can order a judicial inquiry,” he added.

Senior counsel Dave said the fact that Justice Katju was silent for so long was surprising, but there was no reason why one should disbelieve it.

“The question is whether it is true or not. The question is whether what he had said is factually correct or not. The fact that he has kept quiet all these years is surprising. One would have wished he had spoken at that relevant point of time,” Dave said. “The incident is also a poor reflection on the judiciary that CJI after CJI is succumbing to political pressures,” Dave added.

Advocate Prashant Bhushan, who has been crusading against alleged corruption in the judiciary, said the entire episode showed that several dubious persons have come to reach top positions in the judiciary where they can appoint more such dubious persons to the judiciary.

“The most important lesson from this example, which is by no means the only such example, is the danger of lack of transparency in the appointment of judges,” Bhushan said.

Bhushan said a proposed law on judicial appointments sought to add the law minister and some “jurists” nominated by the government to the selection committee. This will only increase the government’s clout in the selection process, compromising the independence of the judiciary, he said.

“The present problems arise on account of the lack of any proper system of comparing the merits and demerits of prospective candidates with some laid-down criteria, and because of lack of transparency in the appointments. The UK and many other countries now have full-time independent judicial appointment commissions which invite applications and nominations that are comparatively evaluated on laid-down criteria,” Bhushan said.