The conscience of Justice Markandey Katju, dormant for over 10 years, erupted recently, throwing out allegations against everyone around him — mostly in the nature of ipse dixit. His targets — three former Chief Justices of India in the collegium (Justices R.C. Lahoti, Y.K. Sabharwal and K.G. Balakrishnan) that could have but did not select Justice Katju to the Supreme Court in 2004 or earlier. That, however, is not Justice Katju’s allegation. His charge is that these three succumbed to political pressure one after the other and allowed a “corrupt” judge of the Madras high court to remain in office.
On April 3, 2003, eight additional judges were appointed to the Madras high court for a period of two years — Ashok Kumar was one of them and was second in the order of seniority. As is routine, sometime around 2005 April, when their term was to expire, their files were sent to the Supreme Court with recommendations of the high court’s Chief Justice that they be confirmed as judges. Justice Katju was the Chief Justice of the Madras high court from November 2004 till he was transferred to Delhi high court in October 2005.
It is not clear whether Katju was the CJ of Madras who made the recommendation. On April 1, 2005, the Chief Justice of India, Justice Lahoti, recommended extension of their service by four months to give time for careful evaluation of the cases.
Justice Katju says that in April 2005 or so, he informally whispered into the ears of CJI Lahoti that Justice Ashok Kumar, one of the eight awaiting confirmation, was “corrupt”. Chief Justice Katju did not think of putting this serious issue in writing. He asserts that after a lapse of a month or so, the CJI orally confirmed to him that his allegations about Judge Ashok Kumar were correct.
It is a matter of record that on April 29, 2005, the collegium of three senior-most judges, including the CJI, took the view that the name of Ashok Kumar and another could not be recommended for confirmation as permanent judges. Though the proceedings of the collegium are kept secret, it’s safe to assume that Justice Katju’s whisper could not have been the sole basis for such a serious decision, but it probably did play a part in the collegium’s decision.
Six of the eight additional judges had clean records and there was no justification to keep their cases pending just because in the case of two more inquiries were required. Their cases were cleared and the two were given extensions pending further inquiry. Justice Katju believes that the Dravida Munnetra Kazhagam (DMK), whose support Judge Ashok Kumar enjoyed, then administered a direct threat to the Prime Minister of India of pulling down the Central government in case Justice Ashok Kumar was not made a permanent judge. And so the Prime Minister, Justice Katju alleges, applied pressure because of which three successive Chief Justices of India allowed a “corrupt judge” to continue in office. As evidence, a letter of July 2005 from the PMO to the CJI enquiring about the judge, has been cited.
As it happens, the two judges whose confirmations were deferred were dalits and the law minister of the time, H.R. Bhardwaj, recently said in a TV interview that there were complaints of bias against dalits in the matter of appointments to the Madras high court bench. The former minister added, “Chief Justice Katju was particularly targeted.” As CJI Lahoti put it while granting an extension to the two judges, the issue was “sensitive”.
But the inference that the Prime Minister exerted pressure on three successive CJIs is baseless. A letter enquiring about the judge does not amount to exerting pressure. CJI Lahoti retired in October 2005 and the subsequent CJIs repeated the extensions until Ashok Kumar finally got confirmation in 2007 with the support of all the authorities concerned. Incidentally, not a word is on record about the alleged acts of corruption against the judge. What has been recorder is that as district judge in 2001, he reacted strongly against the manner of arrest of DMK supremo M. Karunanidhi.
Justice Ashok Kumar retired in 2009 and died shortly thereafter. The charge that Prime Minister Manmohan Singh succumbed to the alleged threat of the DMK is ridiculous and the assumption that the DMK would stake its own position in Central government in support of a judge is preposterous.
What is a fact, however, is that though Justice Katju might have had good reasons to desist from leaving any record that would annoy the DMK government during his tenure in Chennai, he had enough opportunities all these years to disclose the undoing or misdoings that he now considers important. But the truthful and fearless judge remained silent. The question that begs an answer is: Would his conscience have exploded as it did recently if the United Progressive Alliance government had continued in office? The answer is obvious.
Justice Katju’s fig leaf explanation — an accidental and sudden revival of painful memories — cannot hide his real purpose. The shrewd timing of his expose announces his availability to serve the country under the new government.
Finally the question arises whether the Prime Minister in our democracy has to remain a silent spectator in the matter of judiciary even if something affects the public interest? No. If indeed by a particular decision of the judiciary on the administrative side, the continuance of the Central government is indeed at stake, the Prime Minister is free to share his fears with the CJI. Remember, the Prime Minister was the ultimate authority in the matter of appointment of judges of the higher judiciary until the Supreme Court held differently in 1993. Even today, the text of the Constitution reads so. And the much talked about Judicial Appointments Bill includes the executive and politicians in the commission to deal with aspects of higher judiciary, including appointments and transfers.
Much Ado About Nothing is a delightful Shakespearean comedy — the present episode penned by Justice Katju deserves to be treated as a forgettable tragedy.
The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India. He can be reached at firstname.lastname@example.org