Justice Markandey Katju's reasons for criticising the Supreme Court (SC) judgment in the Soumya rape case may have been legitimate, but is the SC right in engaging with him by inviting him for a debate?
In the last few months, Justice Katju has attacked the Chief Justice of India (CJI), made casteist jokes, mocked Biharis and offended the people of Odisha in his Facebook posts, ending them all with an exclamatory "Hari Om".
He had to recently apologise for a post he shared on Facebook and on his personal blogpost, ridiculing the people of Odisha. He wrote in the post: "I was asked to write about the Oriyas (Odias). What is there to write about these poor chaps? Ever since they got a thrashing at the hands of Ashoka in the battle of Kalinga they have been a dejected lot. Now all they have with them are a lot of pots (Patras), big pots (Mahapatras) and supposedly intelligent kings (Patnaiks). And of course they have Lord Jaggannath, to whom they pray every day for revenge on the abominable Biharis."
Katju, a retired SC judge, is a passionate Facebook user. His posts in a day put together are enough to fill the edit page of a national daily. Given his standing, the views expressed by him on the social networking website often make the news, which he then happily and unfailingly shares.
You can understand when a retired judge, at leisure, engages with the world through Facebook – more often than not to put forward his unsolicited views on every issue under the sun. What is perplexing is the fact that the highest court of the land is dignifying his criticism of a judgment by inviting him for a debate.
Under normal circumstances, a common man expressing his or her unabashed criticism of a judgment that has already been decided, following due process and the procedure established by law, would have amounted to contempt of court.
Justice Katju’s criticism has, however, attracted a summon for a debate instead.
According to a PTI report,"In an unprecedented order, the Supreme Court on Monday summoned Justice Katju to appear in person before it to point out the 'fundamental flaws', as claimed by him in the Soumya rape case,"
"He (Justice Katju) is a respected gentleman. We request him to come in person and debate his Facebook post criticising the judgment. Let him come to the court and let's debate over the fundamental flaws in our verdict," a bench of Justice Ranjan Gogoi and Justice UU Lalit said after issuing a notice to Justice Katju, the PTI report stated.
But, in spite of many of his posts that fall in the 'just joking' category, the fact remains that his legal expertise and acumen cannot be questioned and it cannot be denied that he must have had valid doubts and reasons for questioning the apex court's judgment.
For example, he has raised some extremely important points in his post, which reads, “In acquitting the accused on the murder charge the Court held that there is no evidence that the accused had any intention of causing the death of Soumya and so could not be convicted under section 302 IPC. The Court held that it is possible that after being assaulted on the head four or five times and then being raped, Soumya might herself have jumped off the train on which she was travelling. However, the Court found the accused guilty of rape under section 376 and also guilty of some other provisions of the IPC.”
And he also states reasons for finding the assertions flawed, “Section 300 states that it is a case of murder (for which capital punishment can be imposed under section 302) even if there was no intention to kill, if the accused inflicts a wound sufficient to cause the death of a person in the ordinary course of nature.”
Therefore, the pertinent question to be asked here is whether it was desirable for the Supreme Court to hold a debate on a judgment duly decided by the Lordships just because Justice Katju found it flawed.
In the last few months, on more than one occasion, CJI TS Thakur has talked about the huge pendency that the courts, including the SC, is grappling with.
Earlier this month, CJI Thakur made an important appeal when he urged the ministry of law and justice to devise a mechanism to relieve the judicial system of the "avoidable burden" that arises out of the "sheer apathy, indifference or incapacity" of the government and its departments to take certain decisions.
As reported by PTI, the Chief Justice also asked the government to set up a panel, comprising of former judges, to decide on whether or not to fight a case against any citizen when the issue could be resolved outside the court.
"I would request the law minister to devise some mechanism to relieve our judicial system of avoidable burden that comes on us, not because we are not ready to share that burden but because of the sheer apathy or indifference or the incapacity of the government to deal with a situation to take a decision," the Chief Justice said.
The appeal was important given the huge pendency that the judiciary is grappling with. According to an Indiaspend report, published in Firstpost in April, more than 20 million cases are pending in the Indian districts courts; two-thirds are criminal cases and one in 10 have been pending for more than 10 years.
The Indian Express reported that according to statistics provided by the Supreme Court’s E-Committee on pending cases in district courts, there are more than 2.18 crore cases pending in district courts across the country. In 12 states, more than 5 lakh cases are pending for disposal.
The report further stated that data, as of 30 April, highlights the glaring problem of the huge pendency across states and Union territories. Over 2.18 crore cases remain pending, of which more than 22.5 lakh cases have failed to be decided in the last 10 years – 10.3 percent of the total pendency.
It also stated that, "Around 38.3 lakh cases are pending for more than five years but less than 10 years – 17.5 percent of the total number of cases. Therefore, more than one-fourth of cases pending across district courts in the country are pending for at least five years. And 29.5 per cent of total cases, or 64.5 lakh cases, have been pending for more than two years."
Justice Katju, like any other citizen, has the right to comment upon the Soumya case judgment without attacking the legal sanctity attached to the courts. It is an expression of free speech. But there is no convincing enough reason for why any court should spare any amount of its precious time in engaging with such a criticism, unless it involves some pertinent constitutional questions.