Justice Markandey Katju has an immunity that ordinary citizens cannot even dream of. By the virtue of being a "My Lord" himself for a long period of time, he can get away with criticising the judiciary and judges in a language that would call for immediate contempt proceedings, if uttered by the commoners.
On Thursday, through series of posts on his Facebook page, Justice Katju took on the higher judiciary. He raised issues of 'corruption' in higher judiciary and also dwelt on issue of 'judicial overreach'.
Stating that "there is a lot of corruption in the judiciary too", Justice Katju asked the Chief Justice of India (CJI) TS Thakur to "clean up the judiciary first before cleaning up other bodies".
Further, dwelling into the issue of judicial overreach, he wrote, "I thought that there is separation of powers in the Constitution. But since the Supreme Court evidently thinks otherwise, and believes it can also perform legislative and executive functions, I recommend to the Parliament, the state legislatures, and the executive, to hand over all their functions to the judiciary, and let them run the country."
Red flags raised by Justice Katju is not new. They have been flying high for decades.
But it needs immunity of the kind that Justice Katju possess to make it a debating point. Fear of contempt has been a serious deterrent for the media to highlight the cases of corruption in the higher judiciary. It is a sad truth that has been acknowledged even by the constitutional luminary Fali S Nariman.
In his book The State of The Nation, Nariman writes, "In India, the higher judiciary has inherent (and almost unbridled) powers of contempt — even beyond the laws enacted by Parliament. And for that reason, the media and the whole lot of information-seeking agencies — not sure of how contempt law will be interpreted — are tight-lipped. No one dares to come out with what they believe to be the facts (in any matter pertaining to judges or administration of justice) even though the law (amending the Contempt of Courts Act 1971) now permits 'justification by truth' as a valid defence."
He goes on to write, "But let a complaint be made even by a responsible individual against a reputedly corrupt judge in higher judiciary, and no newspaper will publish it. Give the newspaper as much proof or evidence as you will — it will still not publish anything! Regrettably — with a few notable exceptions — the fraternity of justices in the higher judiciary in India tend to stick together when anyone speaks of any wrongdoing about one of them — alas, even when some of its members themselves entertain a shrewd suspicion of some wrongdoing. There pervades, in higher echelons of judiciary, what I would characterise as spirit of trade unionism."
"Trade unionism amongst lawyers is different. It is also a closed shop but there are many leaks! One instance of wrongdoing about a colleague at the Bar and dozen other 'lawyer friends' will spread the word about more such wrongdoings! No, the trade unionism of lawyers is just no match to the trade unionism of judges. The latter close their ranks when one of their own is involved,” writes Nariman.
In the book, Nariman narrates an incident where 'unsubstantiated reports' emerged in 2003 about three sitting judges of one of the high courts in South India "being found in some shady joint outside Bangalore city". Nariman writes that the incident widely publicised was strongly denied but before the chief justice of the concerned high court could have instituted an inquiry committee to investigate a matter, a contempt proceedings against the publication was initiated.
According to Nariman it was "only later — only much later" — that the Chief Justice of India set up a high-powered committee consisting of judges of three high courts. But sadly "when this Inquiry Commitee of the Chief Justices took up its task, contempt notices had been already issued by the Karnataka High Court to representatives of media".
In this situation, as rightly pointed out by Nariman, it was too late. The contempt notices were enough intimidation for the media to be unsure as how to go ahead.
Following Katju’s post there was enough debate on the issue. People commented and most of them agreed to Justice Katju’s criticism. However, his standard reply to a host of comments that questioned his position and remark was, "You have no idea of the extent of corruption in the judiciary".
In October 2011, the Supreme Court, while asking the Chief Justice of the Allahabad High Court to take action against a judge of the same court for passing order on 'extraneous considerations', made some observations, which were perhaps the most serious indictment of the higher judiciary.
While passing the order, the Bench, compromising of Justices Markandey Katju and Gyan Sudha Misra, famously remarked "'Something is rotten in the State of Denmark', said Shakespeare in Hamlet, and it can similarly be said something is rotten in the Allahabad High Court, as this case illustrates".
The Bench further observed, "We are sorry to say but a lot of complaints are coming against certain judges of the Allahabad High Court relating to their integrity. Some judges have their kith and kin practising in the same court, and within a few years of starting practice, the sons or relations of the judge become multi-millionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when the sons and other relatives of judges could derive no benefit from their relationship and had to struggle at the Bar like any other lawyer."
Will such criticism be tolerated by My Lords, if it is made by the most well-intentioned outsider?
Justice Katju in his post also referred to an interview, where CJI in response to question about a statement by Finance Minister Arun Jaitley, regarding alleged judicial interference in executive functions, said that judiciary intervenes when the executive fails in its duties.
Reacting to the reply, Katju wrote, "Judiciary also fails in its duty to decide cases expeditiously. Often, cases take decades to decide finally. People who get caught in litigation are often weeping because of 'tareekh', after 'tareekh', and no hearing. Also, a large section of the judiciary has become corrupt. So should the executive authorities tell the judges that since you have failed in your duty we will decide cases? Justice Thakur's argument cuts both ways. Those living in houses with glass windows should not throw stones at others".
Justice Katju, mincing no words, criticised judiciary for various reasons. Constructive criticism is essential for the growth of any institution. But it remains a fact that even the most well-intentioned 'constructive' criticism of judiciary remains a privilege enjoyed by few and always battles the risk of being hounded by a case of contempt.