The real story behind justice Markandey Katju’s raking up an old case questioning the promotion and extension of a judge.
By Ramesh Menon
Controversy is virtually a shadow of Justice Markandey Katju, chairman of the Press Council of India (PCI). Before one tapers off, another takes root. The latest missive was fired through his blog on July 20. Katju claimed that Justice Ashok Kumar was given extension and promotion in the Madras High Court by the UPA government because of pressure from a Tamil Nadu ally. The reference was to the DMK, which armtwisted the then Dr Manmohan Singh-led government to extend his tenure as an additional judge and later confirm him as a permanent judge. Three chief justices of India, he said, had given in to the UPA government’s pressure, despite a an adverse Intelligence Bureau report against Kumar.
Obviously, it raised a hornet’s nest in parliament, with the BJP MPs screaming that the independence of the judiciary had been smothered by the executive during the previous government. It made for good headlines. Katju, due to retire as chairman of PCI in October 4 this year, was back in the news. Though the previous government had appointed him, the present one was backing him.
Sources say that Katju’s sudden appointment as the PCI chairman raised eyebrows on October 5, 2011 as just one day before Justice VS Sirpurkar was officially informed that he would be taking over that post. But because of the intervention of Manmohan Singh and UPA chairperson, Sonia Gandhi, Katju’s name was announced. Sirpurkar was surprised to see Katju’s name in the newspapers. Investi-gations by India Legal revealed that there was more to Kumar’s story than what Katju made it out to be.
Kumar was an additional district judge in Tamil Nadu from 1988 to 2002. He had an excellent track record and all his annual confidential reports were outstanding. In his career, Kumar believed that judicial pronouncements should be severe when it came to protecting rights in a civil society. “Time may change, people may change, but law should not change.”
But things changed dramatically when the then J Jayalalithaa-led AIADMK government arrested the 78-year-old DMK leader
M Karunanidhi late in the night of June 30, 2001, virtually dragging out an ailing and screaming former chief minister. He was produced before Kumar at 4.30 am who sent him to judicial custody but told the police to first get him medically examined, as he was sick. But the police did not heed the direction. Kumar later reprimanded the police with strong remarks. After this, allegations were hurled against him, saying he had acquaintances with the DMK.
Another incident that gains significance, with the Katju controversy stalling even parliament proceedings, dates back to the mid-nineties when Kumar was the principal district judge in Dindigul. AIADMK henchmen had suddenly occupied the Kodaikanal International School in the middle of the night, evicting all the resident students from the hostel. The judge restored the school back to the authorities, angering the AIADMK government which then transferred him to Thiruvannamalai. Sources pointed out that a vehicle belonging to the AIADMK-run Jaya TV had once rammed into Kumar’s car. After that he was given police protection. George Fernandes, the then defense minister, had said that Kumar’s life was in danger.
A probe by India Legal showed that Katju, as chief justice of the Madras High Court from November 2004 to October 2005, had raised objections against Kumar continuing as a high court judge, but all of them were oral in nature. In fact, when the then Chief Justice RC Lahoti asked for it in writing, it was not given. However, Katju insists he wrote a letter to Lahoti. But according to Lahoti, he instituted an inquiry against Kumar on the basis of an anonymous complaint but all he got was oral information that suggested that some DMK politicians may be known to Kumar.
Interestingly, according to intelligence reports, there were numerous calls from the chief minister of Tamil Nadu to the chief justice of the Madras High Court (Katju) both before and after Lahoti was informed about the complaints against Kumar. When the office of the chief justice of India called Katju and requested him to send a written complaint so that action against Kumar may be taken, Katju said that he would not give any written communication, as the judges and advocates in Chennai would not allow him to continue there and would make his life miserable. In the absence of a written complaint and a formal inquiry report, it was not legally possible to take action, said sources in the Supreme Court.
When Katju was transferred from Chennai to Delhi as a Supreme Court judge, he was again requested to send a written complaint on his experiences with Kumar but Katju rejected it, saying that he was no more the chief justice of the Madras High Court. Therefore, the law ministry asked the chief justice of India to give reasons why Kumar’s name was not confirmed as a regular judge of the Madras High Court. It was only then that he was confirmed as a permanent judge.
Former Chief Justice of India, KG Balakrishnan wondered why Katju was raising the issue after so many years, and that too when the concerned judge was no more. He said the judge was given extension strictly following the laid-down procedure and it was not done under pressure from any quarters.
Both the BJP and AIADMK have asked the former prime minister Singh to explain if he had pressured the collegium in June 2005 to confer permanent status on the judge Katju is referring to. Singh refused to comment on the controversy, only saying the issue had been clarified by former law minister, HR Bhardwaj who had said that no undue favours were given.
When Katju was a Supreme Court judge, there were 689 complaints against him during the tenures of Chief Justices Balakrishnan and SH Kapadia. Many of them related to the fact that he was favoring a senior advocate from Allahabad. This was one of the reasons why that advocate could not become the Supreme Court judge as it was rejected by the collegium because of the allegations. The complaints included the ones pertaining to the fact that Katju used to meet politicians at his residence, like former union minister Salim Sherwani.
Katju has been embroiled in numerous controversies before. “The law does not permit us to do it, but otherwise we would prefer to hang the corrupt,” he had said when dealing with a corruption case in May 2007. In 2009, Katju in a judgment said that Muslim students could not insist on sporting beards, as it would lead to Talibanization of the country. This drew a lot of flak from Muslim organizations and religious leaders. The case pertained to Mohammad Saleem, a Xth standard student of Nirmala Convent High School in Vidisha, Madhya Pradesh, who was removed as he refused to shave his beard. Katju told the petitioner, BA Khan, who appeared for the student, that Muslims had no fundamental right or religious duty to sport a beard.
As it became a hot issue, a delegation comprising Maulana Muhammad Wali Rahmani, secretary, All India Muslim Personal Law Board; Mufti Arshad, an Islamic scholar; Mahesh Bhatt, filmmaker; and Mahmood Pracha, an advocate met the then prime minister Singh to protest against Katju’s remarks. Singh was reportedly upset and surprised that something like this had been said when India was a secular country.
Katju threw protocol to the winds when he entertained the petitioners and complainants at his residence on 4, Akbar Road, New Delhi, before he apologized for what he had said and also sent it to another bench to review the judgment which was then reversed.
Articles 124(2) and 217(1) ensure that the executive, through the president, has primacy in the appointment of judges. In 1993, a constitution bench of the Supreme Court held that the chief justice of India would have primacy in appointments. In 1998, through another constitution bench judgment, the apex court cut the executive out of the picture by putting in place a CJI-headed collegium system. As the collegium system for appointment of judges is now clouded with numerous controversies, the government wants to amend the above two articles.
Justice AP Shah, who heads the Law Commission as chairman, said that the collegium’s conduct has been opaque and appointments to the higher judiciary lacked transparency while talking to a television channel. Reacting to Katju’s remarks, he wondered about its timing. “The collegium system has completely failed, judges are appointed on unknown criteria. It has failed as favorites get appointed and the rest are left out,” Shah pointed out. Clearly, we still have not heard the end of the controversy.