Justice Katju and judicial appointments: A summary

Later described as a response to few requests from “some Tamilians” to share his experiences at the Madras High Court, J. Markandey Katju’s recent and extremely public disclosures have created quite the storm..Alleging that three successive Chief Justices of India had given in to political pressure in appointing a judge of the Madras High Court, J. Katju’s comments have led to a stalled Parliament, a public statement by a former Law Minister, and a typically brief comment by former Prime Minister, Dr. Manmohan Singh..The origins of this controversy lies in this post by J. Katju, wherein the former Supreme Court judge says that despite an adverse report by the Intelligence Bureau and despite the findings of a Supreme Court collegium, an Additional Judge of the Madras High Court was first given extensions to his tenure and then made a Permanent Judge..According to J. Katju, this was done at the behest of a political party that was a key ally in the UPA-led coalition government. In essence then, J. Katju has alleged that the appointment was made purely on political grounds, in the face of adverse findings by the IB and the Supreme Court itself..As can be expected, reactions were quick and numerous. The then Law Minister, HR Bharadwaj described the controvery as “inconsequential”, and described J. Katju as an “active, controversial man”..Former CJI and the judge who eventually made the appointment as Permanent Judge, KG Balakrishan described the disclosures as “silly allegations” while ex-CJI Lahoti has denied any wrongdoings whatsoever..The reactions of senior counsels have been less than kind. Former Attorney General Soli Sorabjee said that J. Katju’s revelations were “bringing down the institution” while Fali Nariman described the blog posts as unfair and perhaps a means to some “cheap publicity”..Whatever be the motives behind these disclosures, the fact of the matter is that when it comes to this particular appointment, the Supreme Court did in fact adjudicate the matter. In a 2008 decision (Shanti Bhushan v Union of India & Anr) the Supreme Court sought refuge in the fact that there was no legal challenge to the extensions of tenure given to the Additional Judge..As it repeatedly noted, the “clock cannot be put back” and hence the appointment itself was not set aside. Stating that it was the prerogative of the Chief Justice of India to act on information suggesting the unsuitability of a judge, Additional or Permanent, to continue holding on to judicial office..The court also osberved that this particular judge has been transferred to “some other High Court in public interest” and hence the matter ought to be put to rest. At the very end of the judgment though, the Bench of JJ Pasayat and Sharma chose to quote a few lines of Shakespeare that, one could argue, reflected the true opinion of the court..“The purest treasure moral times affordIs spotless reputation; that away,Men are but gilded loam or painted clay.”.Shakespeare aside, this controversy raises a few telling issues, issues that will not change even as what the nation needs to know will. One, the fact is that India’s judicial appointments are one of the opaque processes in the world, a characteristic that was most recently highlighted by the non-elevation of former Solicitor General, Gopal Subramanium. However, Subramanium’s case is not the first of its kind, nor is it likely to be the last..Two, the politics of judicial appointments is hardly a recent phenomenon. As Abhinav Chandrachud notes in his book, “The Informal Constitution”, there has long since been a causal link between the political setup of the country and judicial appointments. The 1993 and 1998 decisions in the “Judges case”, that changed the very way appointments were made to the higher judiciary were,.“[Not] decided during the powerful Indira Gandhi government era, but at a time when political power was weakening at the centre”.Repeatedly drawing on the political composition of the Central government, Chandrachud highlights this link between the Executive and the Judiciary. To say that judicial appointments are completely free of political interference then, would be incorrect..And then there is the man himself. J. Katju may have been an “entertaining judge” (his court was highly recommended to interns), but there was always a need to take his words with a large pinch of salt. As a judge, J. Katju was often dismissive of counsels, browbeating lawyers in open court. And he may have had the best of intentions but there was an undeniable air of theatre and drama with most of what he did. The current disclosures are, in that sense, no different..Secondly as Chairman of the Press Council of India, Katju has been entrusted with the task of regulating Indian media, a media that has traditionally shied away from criticizing the Indian judiciary. The two have shared an uneasy relationship at the best of times; a 100-crore defamation suit for showing the wrong judge’s picture saw little judicial interference, as did the forced publication of an affidavit revealing detailed allegations of sexual harassment against a former Supreme Court judge..So while J. Katju may have ignited a debate on judicial appointments, what may be of be greater significance is how this shapes Indian media and the jurisprudence of media rights.