In all the tu-tu-main-main over Markandey Katju and Arun Jaitley, and the wider political war of words between the Congress and the BJP, one simple fact has been lost sight of: the systemic element of patronage that supports the entire edifice of corruption in India.
Katju has chosen to reinforce the system rather than fight it.
The issue is not what Katju thinks of Narendra Modi, but how his appointment as Chairman of the Press Council immediately after his retirement as Supreme Court judge has strengthened a vital pillar of political patronage in our corrupt system.
Katju says Jaitley distorted his statements on Modi, and in any case, he was making his comments as a Indian citizen, not as Council Chairman; Jaitley has called for Justice Katju's resignation for using his quasi-judicial position to make political points that help the Congress government which appointed him as Chairman.
But Jaitley should know that if Katju was so fussy about propriety he would not have accepted the appointment in the first pace. So Katju is hardly going to suffer an attack of conscience now just because Jaitley has brought up the subject. By not only accepting it, but then going on to demand more powers to discipline the press, Katju has shown that he has clearly accepted or compromised with the patronage system that got him the job.
Any judge who seeks a big job after retirement and also more power and pelf with it is fundamentally compromised on independence. Unless proven otherwise.
One should also consider how easily he was made Press Council Chairman. Justice Katju retired as a Supreme Court judge on 20 September 2011, but within 15 days he was appointed Chairman of the Press Council.
Contrast this with how many months and years the government takes to appoint Chairpersons to crucial companies such as ONGC and Coal India – both of which continued without a full-time chief for nearly a year. Coal India’s acting Chairman even retired without being confirmed in his post.
The Indian Express noted how 18 of the 21 Supreme Court judges who retired after 2008 have been immediately accommodated in lucrative or cushy jobs. The examples the newspaper cites are indicative of the power of political patronage: Justice Dalveer Bhandari was posted as a judge of the International Court of Justice (ICJ) even before he demited office. Justice Mukundakam Sharma retired two days ahead of Katju, but he got assurances on his next job four months earlier as head of the Vansadhara Water Dispute Tribunal.
And so it goes on and on to explain how 18 former Supreme Court judges have been given post-retirement jobs.
As if this is not enough, the Supreme Court has managed to do its own post-retirement job creation by mandating in a recent judgment involving the Right to Information Act that the information commissions at centre or states should have retired Supreme Court and high court judges manning them.
A Supreme Court bench passed this order in a public interest litigation (PIL) filed by Namit Sharma who challenged sections 12 and 15 of the RTI Act of 2005, which specify the qualifications needed for becoming an information commissioner. Among other things, the order said that the office of Chief Information Commissioner in centre and states should be headed by former (or current) Supreme Court judges or chief justices of high courts (past or present).”
This is the central problem – that politicians in power can help retiring babus and judges to obtain remunerative jobs, combined with huge powers, even after retirement. The point is not how honest a judge is, but that the system leaves huge scope for abuse. And looking at the corrupt system we have created, with all its linkages between power, position and money, anyone who accepts such a job after retirement must be fundamentally treated with suspicion on his motives.
This applies to Justice Katju as well, for he saw no moral conflict between taking up a job intended to discipline an aggressive media just when the government was under siege over several corruption scandals.
The only remedy for such behaviour is to bar retiring government officials and judges from taking up any job in the private sector or in government, even if it is a constitutional post, for at least two years after retirement. It is not as if India lacks otherwise competent people to man such positions.
The problem, though, is not restricted to judges alone. Babus in government, who directly control access to political decisions and are in the best place to wangle post-retirement jobs for themselves and their cronies, seldom fail to do so.
This is the nexus: politicians use their power to promote cronies and make money; the bureaucrats are the only ones who can stop them, but don't; babus then wangle plum jobs after retirement. So do judges. How is this system supposed to deliver good governance?
As Firstpost noted some time ago, quoting another Express report, “a disproportionately large” number of IAS and IPS officers obtained sinecures or big-ticket jobs after retirement. Says the Express: “Details of nearly 90 such appointments made in recent years show these civil servants being parked as governors, information commissioners, and as heads or members of a slew of bodies such as the Union Public Service Commission, the National Commission for Minorities, Central Information Commission, National Consumer Disputes Redressal Commission and the Central Administrative Tribunal (CAT). Most of these posts enjoy the rank of secretary to the government of India or above. In the case of some officers, new positions have been created to accommodate them.”
Not only that. Of the 133 independent directors appointed to the boards of 21 public sector companies, “at least 46 of them are former bureaucrats.” So much for their independence. They are merely serving the government they always served even after retirement.
This is where the Katjus of the world need to examine their own consciences to check if they are truly above board: should they be accepting sinecures after 65, when they are through with their working lives?
And it isn't as if judges lack for gainful employment after retirement. No less than former Chief Justice KG Balakrishnan has confirmed that most retired judges get a lot of arbitration work. The issue seems to be the power and position that comes with a government job in Delhi. This is where the system of patronage wins.
In this writer’s opinion, Katju has failed the test by compromising with a system of patronage that underpins corruption.