Governance

The Markandey Purana Questions, no answers

Justice Katju has antagonised many with his style of functioning and understanding of issues. His recent allegations against a Madras High Court judge are part of that pattern.

img-aug2014-34THE mythological Markandeya Purana begins with the sage, Jaimini, asking four questions: “Why did Lord Vasudeva, the original creator, maintainer and destroyer of the Universe, who is devoid of material qualities, assume a human-like form to descend upon the earth and engage in pastimes with His devotees? For what reason did Draupadi become the common wife of the five Pandavas? How is it that Lord Baladeva, the first expansion of the Supreme Personality of Godhead, went on a tour of holy places so as to be freed from the sin of killing a brahmana? And, how is it that Draupadi’s five unmarried sons were killed after the great battle at Kuruksetra, as if they had no protector?” The Purana gives answers to these posers.

But in the modern Markandey Purana, there are only questions and no answers. It all started with the July 21 front-page article in The Times of India on corruption in the higher judiciary, written by Justice (Retd) Markandey Katju as a personal blog. This got him instant publicity that he has been craving. In his piece, Justice Katju had alleged that an additional judge of the Madras High Court facing corruption allegations was allowed to continue in the post despite adverse Intelligence Bureau reports, and that the UPA government persuaded successive Chief Justices of India, first to extend his tenure and then to make him a permanent judge. Since then there have been several questions, but no answers.

Kanimozhi has questioned the wisdom of Katju, as Chief Justice of the Madras High Court, in forwarding cases to the same Additional Judge whom he has accused of corruption

The first one to shoot was NDTV anchor Nidhi Razdan, who had put Justice Katju before the TV cameras. This needs to be read in full to understand Katju’s mindset and hidden agenda: “Justice Katju failed to explain why he chose to speak out now. Why did Justice Katju keep quiet about this matter all these years? He first heard of the matter ten years ago as Chief Justice of the Madras HC. When I asked Justice Katju this question, he said it was irrelevant, that it did not matter, and that what is important is the content of what he disclosed. I persisted and said the timing was important since it was a serious allegation and one that should have been revealed much earlier. An angry Justice Katju lost his temper and said he was “warning” me “not to persist” with my line of questioning and then stormed out while on air… Five minutes before we went on air, Justice Katju spoke to me over the phone and said, ‘You better not ask me nasty questions, you better be courteous. I walked out of your show last time and said I would never come back, but I am doing you a favour today. You better learn how to behave, you don’t know how to behave’. I was taken aback but politely told him I will be courteous as I always am with guests. Which is why, I presume, when he stormed out in anger a few minutes later, he declared ‘I warned you.’ While Justice Katju’s claims certainly need answers from the former Chief Justices he has named and from the UPA, he also needs to explain his own silence all these years and the sudden decision to go public. Justice Katju may not like those questions, and he may think I need behaviour lessons for the same, but those questions won’t go away. Yelling at me won’t change those facts.” If the great crusader was espousing a great cause, why this meanness. Besides, what exactly is he hiding? Attorney General Mukul Rohatgi, one of his illustrious predecessors, Soli J Sorabjee, and distinguished Supreme Court lawyer Harish Salve followed suit with the poser that by remaining silent for nearly a decade, Justice Katju had become a willing accessory to the ‘corrupt practice’ and ‘improper compromises’ that he is alleging. Then came the missile from DMK patriarch M Karunanidhi’s daughter, Kanimozhi, who questioned the wisdom of Katju as Chief Justice of the Madras HC, in forwarding cases to the same Additional Judge whom he has accused of corruption. “The fact is that he has no problem in letting cases be adjudicated by a person whom he has accused of corruption,” she said. “DMK has not been accused of any wrongdoing. But the question remains why make an unverified allegation in public after 10 years?”

By the judges, for the judges

The collegium system for appointing judges to various courts seems to have failed to deliver in improving the dismal state of affairs in the Indian judicial systemb

by Neeraj Mahajan

THE Press Council of India Chairman and former Supreme Court judge, Justice Markandey Katju, did the unthinkable—bringing into the open the dirty linen in the cupboard of the Indian judiciary. It remains to be seen how the Indian criminal justice system, sworn to follow the credo of Satyamev Jayate, wakes up to its shortcomings, if any, and learns its lessons.

img-aug2014-35If Justice Katju is to be believed, selection of judges is not an impartial and independent process and as many as three Chief Justices of India colluded in elevating a District Judge in Tamil Nadu to Additional Judge in the Madras High Court despite charges of corruption confirmed by an IB inquiry against him.

According to Justice Katju, a Supreme Court collegium of Justices Lahoti, YK Sabharwal and Ruma Pal suggested that the concerned Additional Judge’s term in the High Court be discontinued. But the DMK precipitated the crisis by threatening to pull down the Manmohan Singh government in case this was done. Chief Justice Lahoti backtracked and granted one year’s extension to the judge without consulting his two colleagues. Justice Katju was then the Chief Justice of Madras High Court.

Former Attorney General Soli Sorabjee reacted to Katju’s bombshell by saying that by questioning the former Chief Justices, Justice Katju is lowering the institution of the higher judiciary. Even others, like DMK chief M Karunanidhi, objected to Justice Katju’s disclosures and sought to know why he had remained quiet so long. “Why Katju is speaking now so many years after the Judge passed away?” Sorabjee asked.

But, ill-timed or otherwise, Justice Katju’s outburst has once again exposed the soft underbelly of the Indian judicial system. Almost half the respondents in the Global Corruption Barometer 2013 feel that the judiciary in India is corrupt, or extremely corrupt. According to the Freedom in the World 2013 report, because of corruption most citizens have difficulty securing a fair trial.

People give bribes to obtain a favourable judgment and influence public prosecutors, the Human Rights Report 2013 laments. According to the Human Rights Report 2012, bribes are sometimes paid to move a case faster through the system.

According to available official data, some 32 million cases are pending in High Courts and subordinate courts across the country—at least 27.6 million in subordinate courts and 4.4 million in various High Courts. As of July 1, 2014, there were 65,970 pending matters before the Supreme Court, out of which 35,413 could not be listed for ‘hearing’. Almost 53.68 per cent were Incomplete/Not Ready, requiring preliminaries to be completed.

The crux of the problem is an acute shortage of judges. Out of the approved strength of 31 judges, the Supreme Court currently has 30 judges. This is a problem that plagues the lower levels much more.

Except Tripura and Meghalaya, all other 22 High Courts in the country do not have a full bench. The worst affected are Allahabad High Court with a shortfall of 70 judges, Punjab & Haryana High Court with a shortfall of 21 judges and Andhra Pradesh, Karnataka and Madras High Courts, with a shortfall of 14 judges each.

All these are symptoms of the dismal state of affairs of the present ‘collegium’ system, evolved after a long-drawn struggle between the executive and the judiciary. This system, which vests the power of appointments to top judicial posts in a collegium of senior judges, has failed to deliver.

Delhi High Court’s Chief Justice AP Shah, who could not make it to the apex court, quoted Justice Ruma Pal to say that the process by which a judge is appointed to a High Court or the Supreme Court is “one of the best kept secrets in the country”. Even former Delhi High Court Judge RS Sodhi called the collegium system “a total failure” and an “uncle-and-son-syndrome”.

“The current system of judicial appointment is faulty, it is opaque. This system attracts charges of nepotism and lack of transparency,” former Union Urban Development Minister Jaipal Reddy said, raising serious doubts about the collegium system of judicial appointment which has recently been challenged in the Supreme Court. Though it came into existence through the judgments of the Supreme Court, there is no mention of such a system anywhere in the Constitution.
The basic flaw in the system is that judges who got selected were called ‘suitable’, but those ‘not suitable’ were not given any opportunity to represent or redress their grievances.

Almost akin to judges appointing themselves, the collegium consists of four seniormost judges in the Supreme Court and the Chief Justice of India and three more seniormost judges in a particular High Court, including its Chief Justice. The government can return a recommendation for reconsideration, but if the collegium reiterates its recommendation, the government has no option but to make the appointment.

Another issue with the collegium is its constantly changing composition, as judges retire every now and then. As a result, the collegium which may preside over a government’s request to reconsider a recommendation might not be the same one which supported that recommendation in the first place.

The present Chief Justice, RM Lodha, wants the system to continue, but with wider consultation with people outside the collegium and “without tinkering” with the memorandum of procedure prescribed by the government in the appointment process.

Distinguished constitutional experts, like Fali S Nariman, are of the opinion that there is no sense of accountability or transparency in the collegium system. According to a senior Supreme Court advocate, the collegium system created two different classes of judges: the superior ones who recommend the appointment and promotion of others and the rest who don’t have a clue as to what’s happening. “Since all the judges in the Supreme Court or High Court are equally competent, should there be discrimination among them?” he asked.

Poor salaries and miserable infrastructure, especially in the lower courts, compound the problem since the best legal brains have no incentive to join. According to a report titled “Infrastructure Development and Strengthening of Subordinate Courts” by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, the pendency of cases is directly linked to the large number of vacancies in subordinate courts.

The Committee noted that recruitment and training of judicial personnel and support staff would help in reducing the pendency of cases. Further, the judge-population ratio may be corrected by appointing more judges to subordinate courts.

The Committee observed that the procedures in courts are ridden with unnecessary complications and consume inordinate time. It, thus, recommended a review by the central and State governments to streamline the court procedures at the earliest.

The answer possibly lies in setting up of a National Judicial Commission backed by an all-India judicial service, on the lines of other all-India services. This should reduce the pendency of cases in lower courts.

The BJP was the first to raise the need for a judicial commission during the Atal Behari Vajpayee-led NDA regime.

Karunanidhi, through his advocate and former Rajya Sabha MP R Shunmugasundaram, questioned the veracity of Katju’s facts. According to him, Justice Katju has stated that the (corrupt) judge had the support of a very important political leader of Tamil Nadu and that he was told this was because as a district judge he had granted bail to that political leader. Obviously, he was referring to Karunanidhi and Justice Ashok Kumar, who was earlier the district judge in Chennai. Shunmugasundaram has this to narrate to prove that Katju’s information Katju was factually incorrect:

“On the night of June 29, 2001, (80-year-old) Karunanidhi was arrested and dragged by police officers in an inhuman manner, violating all norms laid down in DK Basu vs Union of India case. When he was produced before the District Judge at his residence in the wee hours, the judge, late Ashok Kumar, asked whether an FIR had been sent to court and what the reference details were. The police officer, Padmanabhan, DSP of CBCID, admitted that an FIR had not been sent to court and the case diary extract was not available. I was the lawyer present and I opposed the remand citing a Division Bench judgment of the Madras HC, rendered in the case of GK Moopanar vs State, that remand should not be made without the case diary extract or looking into the entries. In spite of the arguments, the District Judge rejected my prayers and remanded on the basis of the copy of the FIR handed over at that time.

“Furthermore, there was no bail application filed as Karunanidhi decided to remain in prison and prove his innocence. This was also stated to the visual and print media on July 2, 2001, by me after a visit to Karunanidhi at the gates of the Central Prison, Chennai. Late Justice Ashok Kumar did not have any occasion to decide the bail petition as Karunanidhi was released a few days later by the State Government. I find it odd that Justice Katju had not even verified the basic facts before making a strong allegation in his article that Justice Ashok Kumar granted bail to Karunanidhi. In one stroke, Justice Katju has accused three former Chief Justices of corruption in higher judiciary, a former Prime Minister of abetting and political leaders of participating in it. While no one should stay silent on the issue of corruption in our public institutions, the need of the hour is not to make slanderous statements based on hearsay.”

SUPREME Court Senior Advocate KTS Tulsi asked Justice Katju as to how an unverified IB report can nail a HC judge on corruption and start penal action against him. Has India’s higher judiciary fallen to such depths that it has to depend on a police inspector to judge the integrity of a HC judge? Most important of all is the question as to why Justice Katju is condemning a judge as corrupt, who can’t defend himself because he is dead for more than five years!

Justice Katju had no answer to these posers and managed to mumble something to the effect that he wrote the blog because some Tamilians had commented on his Facebook post, asking him to write his experiences in Madras HC. He then launched six questions of his own, targeting Justice RC Lahoti, one of the former Chief Justices in the firing line:

• Is it, or is it not, correct that I first wrote him a letter from Chennai, stating that there were serious allegations of corruption about an Additional Judge of Madras HC, and therefore he (Justice Lahoti) should get a secret intelligence inquiry held against that Additional Judge?

• Is it not true that thereafter I personally met Justice Lahoti at Delhi and again requested for a secret IB inquiry against the Additional Judge about whom I had received several complaints, and from several sources, that he was indulging in corruption?

• Is it, or is it not, correct that on my request Justice Lahoti ordered a secret IB inquiry against that Judge?

• Is it, or is it not, correct that a few weeks after I personally met him in Delhi and then returned to Chennai, he telephoned me from Delhi (while I was at Chennai) and told me that the IB, after a thorough inquiry, gave a report that indeed the Judge was indulging in corruption?

• If indeed the IB reported, after an enquiry, that the Judge was indulging in corruption, why did he (Justice Lahoti) recommend to the Government of India to give that corrupt Judge another term of one year as Additional Judge in the High Court?

• Is it, or is it not, correct that after that recommendation of the three-Judge Collegium of the Supreme Court was sent to the Government of India, he (Justice Lahoti), on his own, without consulting his two other Supreme Court Collegium colleagues, wrote a letter to the Government of India asking the government to give another one-year term as Additional Judge to the concerned Judge? Whether Justice Lahoti will respond to these questions, I do not know. But I thought I will put some questions of my own to Justice Katju:

• Is it not true that the present Finance/Defence Minister and former Law Minister, Arun Jaitley, as the leader of the Opposition in the Rajya Sabha had said this of Katju: “Though initially known for his scholarship, he was never a conventional judge. His utterances, both during his tenure as a judge and thereafter, are clearly outlandish. Dignified comment is alien to him…The Chairman of the Press Council discharges a statutory job. His job requires fairness, impartiality and political neutrality. Additionally, a judge, whether sitting or retired, is expected to conduct himself with sobriety, dignity and grace. He cannot be loud, crude, and outlandish, or behave like a egalomaniac.”

• Is it not true that the former Bihar Chief Minister, Nitish Kumar, had asked Katju: “You issue a statement first and then you order an inquiry, and after the so-called inquiry committee submits the report, you decide to leak it out from your own email id without getting it passed from the full Press Council of India, which has been the practice so far. Just because you’re the grandson of eminent jurist Kailash Katju, about whom we grew up reading, and I’m the son of a vaidya (an Ayurvedic practitioner), you will say all kinds of things. What kind of justice is it?”

• Is it not true that in July 2009, while sitting as Supreme Court Judge, Katju ruled that Muslim students cannot insist on sporting beards as it would lead to “Talibanisation” of the country? And faced with stringent criticism, he withdrew it within days, calling himself ‘secular to the core’!

• Is it not true that Katju’s ‘pearls of wisdom’ include statements that 90 per cent of Indians are fools and the same percentage of journalists are ‘anti-people’.

• Is it not true that most senior advocates, who had the misfortune of appearing before Katju, found him a compulsive preacher, more interested in thrusting his opinions on them rather than listening to arguments and writing reasoned judgments?

Katju’s total incapacity to patiently listen to arguments and write reasoned judgments is manifested in this harrowing factual episode:

The Debt Recovery Tribunals (DRTs) are the mechanism established by the Ministry of Finance that works under the Department of Financial Services. Despite DRTs functioning as mere ‘recovery agents’ of the banks, with most adopting a blatant pro-bank attitude, recoveries have not been up to the mark because banks could not substantiate their arbitrary claim of dues before the tribunals! They do not even file counters to ‘reply statements’ of the borrowers, dragging on the cases for years. In one case, it is reported that the bank did not file counter for 10 years.

Is it not true that most senior advocates, who appeared before Katju, found him a compulsive preacher, more interested in thrusting his opinions on them rather than listening to arguments and writing reasoned judgments?

This was because most of the ‘bad debts’ were the creations of banks themselves indulging in corrupt practices and adopting archaic means and procedures in lending and recovery. Most bank managers were professional ‘zeros’, who could not even keep their books of account. The result was chaotic lending and highly exaggerated claims, based on exorbitantly usurious interests sometimes running to 300 per cent, which even the most indulgent DRT could not decree. So banks found scapegoats in the ‘small and medium borrowers’, against whom a sustained campaign of vilification was unleashed.

In 2005, when Justice Katju was Chief Justice of the Madras HC, he readily succumbed to this vilification campaign and took bank versions as gospel truth. He summoned batches of over 400 writ petitions from small industries and enterprises that had challenged the arbitrary action initiated by banks under the draconian Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests (SARFAESI) Act, 2002, after making hugely exaggerated claims as debts due.

ADVOCATES representing these cases came to know of this batch listing only on the morning of the days of hearing. As each batch was taken up, there were over 100 advocates screaming to be heard but none was allowed to argue. The Bench, headed by Chief Justice Katju, dismissed all the petitions and vacated the interim orders earlier granted by various judges. Justice Katju pontificated and recorded this in the judgment as obiterdicta:

“Before parting with these cases, we may mention that there is no equity in favour of the petitioners. The petitioners have borrowed money, and hence they have to return the same with interest. An honourable man repays his debts instead of raising all kinds of technical objections when the time comes for repayment.

“Banks and financial institutions are badly affected by non-recovery of dues. After availing of the facility of financial assistance quite often, the borrowers hardly show interest in repayment of the loans which keep on accumulating, as a result of which it becomes difficult for the financial institutions to give financial assistance to deserving parties due to heavy blockage of money stuck with erring borrowers.”

Vol. 8, issue 5 | AUGUST | 2014

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