Judges in the dock

Print edition : August 22, 2014

Justice Markandey Katju, who is now the Chairman of the Press Council of India. Photo: VIVEK BENDRE

H.R. Bharadwaj, who was Union Law Minister from 2004 to 2009. He admitted that Justice Ashok Kumar had political backing but denied that the UPA government gave in to pressure from the DMK. Photo: K. BHAGYA PRAKASH

Justice Katju stirs up a controversy by questioning the extension of service and promotion of an Additional Judge of the Madras High Court who faced allegations of corruption a decade ago.

IN November 2004, when Justice Markandey Katju became the Chief Justice of the Madras High Court, late Justice S. Ashok Kumar was one of its Additional Judges. He had been directly appointed as a District Judge in Tamil Nadu, before his elevation as the Additional Judge. Since Justice Katju was getting reports with allegations of corruption against Justice Ashok Kumar, he requested the then Chief Justice of India (CJI), Justice R.C. Lahoti, to get a secret Intelligence Bureau (I.B.) inquiry made about him. The inquiry appears to have confirmed the allegations.

On July 21, 2014, in a Facebook post, Justice Katju, now Chairman of the Press Council of India, referred to this episode, and expressed his dismay, alleging that Justice Lahoti had recommended extension of Justice Ashok Kumar’s term as Additional Judge by one more year, overruling the decision of the other two Supreme Court collegium members, Justice Y.K. Sabharwal and Justice Ruma Pal, and ignoring the I.B. report. Although Justice Katju did not name Justice Ashok Kumar in his post, the reference was clear. Justice Katju also alleged that Justice Lahoti did this after a Minister in Manmohan Singh’s government sought his help to avert a political crisis, following the Dravida Munnetra Kazhagam’s (DMK) veiled threat to the Prime Minister of withdrawal of support to the government. Manmohan Singh was then on his way to New York to attend a United Nations General Assembly session. The “threat”, apparently, was that the government would fall after he returned to India, unless Justice Ashok Kumar’s term was extended.

Justice Lahoti’s successor, Justice Sabharwal, recommended another term as Additional Judge for Justice Ashok Kumar, which was accepted by the government. Justice Sabharwal’s successor, Justice K.G. Balakrishnan, recommended confirmation of Justice Ashok Kumar as a permanent Judge, and his transfer to the Andhra Pradesh High Court. Justice Katju concluded his post saying that in view of the adverse I.B. report, Justice Ashok Kumar should not even have been allowed to continue as an Additional Judge.

While Justice Katju’s post exposed the limitations of the Supreme Court’s collegium system, and the myth of the primacy of the collegium in appointing Judges, it, by implication, also pointed to the lack of transparency in the appointment process at every stage, and to the Judges’ support to the opaque system while in office. In his post, Justice Katju did not reveal the details of the I.B. report on Justice Ashok Kumar. The details would enable his readers to judge whether the government was correct in persuading the successive Chief Justices to extend Justice Ashok Kumar’s terms or to elevate him as a permanent Judge. The credibility of I.B. reports took a knock recently in the case of the non-appointment of senior advocate Gopal Subramanium to the Supreme Court.

The DMK connection

One allegation that has surfaced is that Justice Ashok Kumar, while serving as a District Judge, had granted bail to DMK president and former Chief Minister M. Karunanidhi when the All India Dravida Munnetra Kazhagam (AIADMK) government secured his arrest. But the insinuation that he favoured Karunanidhi was insufficient to deny him an extension of his term as a Judge, or his confirmation as a permanent Judge.

Both Justice Lahoti and Manmohan Singh denied the allegation of favouritism while extending the term of Justice Ashok Kumar, and later confirming him as a permanent Judge.

Justice Ashok Kumar was first sworn in as an Additional Judge on April 3, 2003, during the National Democratic Alliance’s (NDA) term under Atal Bihari Vajpayee. Like Manmohan Singh, Vajpayee, too, relied on the DMK’s support for the survival of his government. Justice Ashok Kumar retired on July 17, 2009, and passed away in October that year.

H.R. Bharadwaj, who served as Union Law Minister from 2004 to 2009, admitted that Justice Ashok Kumar had significant political backing but denied that the United Progressive Alliance (UPA) government succumbed to pressure from the DMK. “There was no control over judiciary.... Records will bear out that judiciary is fully insulated,” Bharadwaj told the media. He revealed that besides the DMK, a group of Members of Parliament, belonging to the Scheduled Castes and Scheduled Tribes, also lobbied for the controversial Judge.

Justice P.K. Misra, who was a Judge of the Madras High Court and is now the Chairman of the Goa Human Rights Commission, spoke in support of Justice Katju’s allegation that Justice Lahoti succumbed to pressure from the Central government and that he did not consult the other two members of the collegium.

Justice Ruma Pal said that she had put her objections in writing after learning that Justice Ashok Kumar was being given an extension despite the collegium’s reservations against him, but the then CJI, Justice Lahoti, did not respond to her note.

However, the timing of Justice Katju’s disclosure led to misgivings. Justice K.G. Balakrishnan, former CJI and Chairman of the National Human Rights Commission, termed Justice Katju’s allegations baseless and asserted that Justice Ashok Kumar was given an extension and confirmed as a permanent Judge of the High Court on the basis of due procedure and not under pressure from any quarter. Justice Balakrishnan, however, added that there were allegations that Justice Ashok Kumar had some “acquaintance” with the ruling party in Tamil Nadu and that that was why he had transferred him to Andhra Pradesh.

Karunanidhi alleged that Justice Katju was making allegations at the behest of someone and that his silence for over 10 years on this issue spoke volumes. Justice Katju, however, defended his long silence, saying he was bound as a Judge to maintain decorum and not go public about these allegations. He claimed that as a Judge, he had drawn the attention of the collegium to these allegations.

Katju’s silence on judgment

Justice Katju, ironically, was silent on a Supreme Court judgment which disposed of a challenge to the extension of Justice Ashok Kumar’s tenure. A writ petition, filed by former Law Minister and senior advocate Shanti Bhushan sought the Supreme Court’s intervention to quash the appointment of Justice Ashok Kumar as a Judge of the Madras High Court. The 2007 petition alleged that norms were not followed while appointing him as a permanent Judge and as such the appointment was in violation of the law as declared by the Supreme Court in the Second Judges case (1993) and the Third Judges case (1998).

The petition argued that the opinion of the CJI had to be formed collectively after taking into account the views of his senior colleagues who were required to be consulted by him for the formation of opinion and no appointment could be made unless it was in conformity with the final opinion of the CJI. It was further pointed out that while forming the opinion, the CJI had to consult two senior-most Judges and some other Judges of the Supreme Court who were conversant with the affairs of the High Court concerned. It was alleged that this procedure was not followed while appointing Justice Ashok Kumar as a permanent Judge on February 2, 2007.

The Central government, however, told the court that more than 350 Additional Judges were appointed as permanent Judges of the High Court between January 1, 1999, and July 31, 2007, by successive CJIs without consulting the collegium. The government contended that it did not find it necessary to insist on consultation with the collegium at the time of confirmation of an Additional Judge as a permanent Judge because the government had already been satisfied that a suitable candidate had been chosen as a Judge. Accepting this contention, the Supreme Court Bench comprising Justice Arijit Pasayat and Justice Mukundakam Sharma held that though there was no right of automatic extension or appointment as a permanent Judge, the decision had to be made with fitness and suitability (physical, intellectual and moral) as the touchstones.

However, the Bench agreed with the petitioners that a person who was not found suitable for being appointed as a permanent Judge should not be given an extension as an Additional Judge. Eight Additional Judges, including Justice Ashok Kumar, were appointed on April 3, 2003, and he was second in the order of seniority. On April 1, 2005, the term of these Additional Judges was extended for a period of four months. On July 27, 2005, seven of the eight Additional Judges (except Justice Ashok Kumar) were appointed as permanent Judges and Justice Ashok Kumar’s term was extended by one year, with effect from August 3, 2005. Again on August 3, 2006, the term of Justice Ashok Kumar was extended for a period of six months. The Bench agreed with the petitioners that such extensions for short periods were intended to allow him to continue as a Judge notwithstanding his unsuitability for appointment as a permanent Judge. But it pleaded helplessness in putting the clock back and observed that the then Chief Justice (Justice Lahoti) should have stuck to the view expressed by the collegium and should not have been swayed by the views of the government to recommend an extension of one year for Justice Ashok Kumar as it “amounts to surrender of primacy by jugglery of words”.

In paragraph 15 of this judgment, the Bench made a revelation that does not show Justice Katju in a favourable light. The Bench observed that at different points of time, starting from the point of initial appointment, successive Chief Justices (of the Madras High Court) had recommended that Justice Ashok Kumar be made permanent. “That situation continued till 3.2.2007 when the recommendation of the then Chief Justice of the Madras High Court for appointing respondent No.2 [Justice Ashok Kumar] as a permanent Judge was accepted”.

Justice Katju held the office of the Chief Justice of the Madras High Court from November 28, 2004, to October 10, 2005, before his transfer as the Chief Justice of Delhi High Court. If the Supreme Court’s observation in this paragraph is incorrect, Justice Katju should have pointed it out, in the midst of this controversy, to clear the air. But he has not done so, leading to the inference that Justice Katju himself, as the Chief Justice of the High Court, might have recommended Justice Ashok Kumar’s elevation as a permanent Judge.

The correctness of such inference is confirmed by the subsequent sentence in the same paragraph. The Bench noted: “Before the Chief Justice of India, at the time of accepting the recommendation for respondent No.2 [Justice Ashok Kumar] being made permanent, the details required to be furnished in terms of para 13 of the memorandum were there. There was also the recommendation of the then Chief Justice of Madras High Court who reiterated the view of his predecessor in this regard.” The Chief Justice of the Madras High Court referred to here was Justice Ajit Prakash Shah, who held the post from November 12, 2005, to May 9, 2008, and his immediate predecessor was Justice Katju. The judgment, delivered on December 17, 2008, is available for public scrutiny. So far, it has not been disputed by Justice Katju.

In a post on his blog on July 24 (“The true facts about the corrupt Madras High Court Judge”), Justice Katju claimed that it was his predecessor at the Madras High Court who recommended Justice Ashok Kumar’s appointment as Additional Judge. But the Supreme Court’s judgment in Shanti Bhushan vs Union of India refers to the recommendation by successive Chief Justices, including Justice Katju, to elevate Justice Ashok Kumar as the permanent Judge. Justice Katju has not responded to the observation.

On July 28, Justice Katju wrote another post on his blog, Satyam Bruyat, saying that he alerted the former CJI, Justice S.H. Kapadia, who was then a member of the Supreme Court’s collegium and the senior-most Judge after the then Chief Justice, Justice K.G. Balakrishnan, about the corruption allegations against Justice P.D. Dinakaran (whom he did not name, but the reference was clear).

The collegium was about to recommend Justice Dinakaran for appointment as a Judge of the Supreme Court. Later, when the collegium’s recommendation to elevate Justice Dinakaran became public, leading to protests from the Madras Bar, Justice Katju asked Justice Kapadia about the merits of the collegium’s decision. He quoted Justice Kapadia as saying that Justice Balakrishnan was adamant in favour of recommending Justice Dinakaran, dismissing the allegations against him as baseless. Inexplicably, Justice Katju deleted this post from his blog the following day.

Whatever the truth about Justice Katju’s allegations, they created a storm in Parliament, with AIADMK members demanding a probe and appealing to Manmohan Singh to break his silence on the issue. Manmohan Singh, however, dismissed the controversy as “futile”.

Justice Lahoti refused to “stoop too low like Justice Katju” to answer his allegations and claimed that he had not done anything wrong. But the allegations appear to have provided a fillip to the government to go ahead with the National Judicial Commission Bill and the Judicial Standards and Accountability Bill. The coming weeks will show whether Justice Katju’s allegations hastened the process of reforming the higher judiciary, including its appointment process.

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