NL Interviews Markandey Katju - Part 2

NL Interviews Markandey Katju - Part 1

Dilemma of an I.N.A. accused and Dr. Katju's advice

Generals Gurbux Singh Dhillon, Shah Nawaz Khan, and Col. Sehgal, of the I.N.A. were put up on trial before a Military Tribunal in 1945 in the Red Fort, Delhi along with others for waging war against the King.

The accused had the privilege to make a written statement to the Tribunal. In this connection General Dhillon has written :

" During those days Dr. Katju often used to ask me to recite some of my poetical compositions like 'Chalo Delhi' or ' Netaji ka Farman desh bhakton ko'. 

One day I took Dr. Katju aside and asked : 'Sir, what is your advice? What should I say in my statement ?". He said 'Gurbux, say whatever your conscience tells you'.

I said ' Doctor Saheb,you are my counsel. Can't you help me make a decision ? Isn't it part of your duty ? Please advise me whether I should tell the truth or a lie.'

It was probably Saturday when the aforesaid conversation took place. Dr. Katju told me that he would think it over and advise me on Monday.

Monday came, and when I approached him, he said ' Sorry, I have not been able to make up my mind what to advise you'

I said 'Doctor Saheb, can I ask you after two days?' He said yes, and was happy that I left him alone.

During the next two days I thought about the matter, and decided not to admit the charge. When I met Dr. Katju I asked him 'Sir, what is your advice ?. He said ' Gurbux, it is a difficult problem, I have not been able to make up my mind '.

I said ' but I have '.

Dr. Katju then asked me what I had decided, and I said that I had decided to tell a lie. He asked 'why ?'.

I said ' Among the principles of war there is one : mystify and mislead the enemy. This Court, consisting of British army officers, is the prolongation of the battlefield where I had been fighting, and the members of the Court are as good as my enemies now as they were on the battlefield. Therefore I have a right to mystify and mislead them. My first duty is to save my men. I cannot please my conscience by telling the truth, and as a result endanger the lives of my junior officers and men'.

Dr. Katju attentively listened to me and then said : 'I am glad you have taken a decision'. 

' Do you agree with me ?', I asked.

Dr. Katju repeated ' I am glad you have taken a decision', and saying this walked away.

I felt I had fallen low in his esteem.. How great, noble and upright were those legal luminaries who would not advise their clients to withhold truth even in the face of a certain capital punishment.

In the evening, after last post, I retired to my tent, and closing the flies of the tent I sat down to write my statement. By daybreak it was ready, and I handed it over.

Today as I write these memoirs after a lapse of half a century, I confess that in spite of all arguments, I should have told the truth. I do feel sorry for having told a lie."

The I.N.A. Trial

Perhaps the greatest legal argument ever delivered in India was never made before a law court at all but before a Military Tribunal.

The argument was made by Shri Bhulabhai Desai, the legendary lawyer of the Bombay High Court.

The facts were that in 1943 Netaji Subhash Chandra Bose set up the Indian National Army ( I.N.A.) for liberating India from British rule. A large number of Indian army officers and men, and also civilians living in countries of South East Asia, joined the I.N.A. and fought against the British.

When the I.N.A. surrendered in 1945 the British decided to try the I.N.A. officers on the charge of waging war against the government (section 121 I.P.C.) and murder (Section 302). For propaganda purpose the trial was held in the historic Red Fort in Delhi, and was widely publicized. The Military Tribunal hearing the case were all senior British army officers

For the defence were Shri Bhulabhai Desai, assisted by Sir Tej Bahadur Sapru, Pandit Jawaharlal Nehru, and Dr. K.N.Katju.

Shri Desai's argument was probably the first legal argument before any court in the world which sought to establish the legal right of an enslaved nation to wage a war of national liberation against its foreign ruler.

Bhulabhai spoke for 2 days, altogether for over 10 hours, and had almost no notes. Had he been arguing before a superior Court of law such as the Privy Council or a High Court, or an International Tribunal consisting of eminent jurists, he would have been assisted in the development of his arguments by observations made from the bench. But speaking before a court martial consisting of army officers not trained in law he had no such advantage.There were no interruptions from first to last, and the whole argument was a sustained effort to present a case which counsel believed was correct in law.

The substance of Bhulabhai's submission was that under international law an enslaved nation has a right to fight for overthrowing foreign rule.

Shri Desai first placed the facts. After the Japanese occupied South East Asia in 1942, the Indians living there, with Japanese support, set up a Provisional Government of Free India, with Netaji Subhash Chandra Bose as Head of State. This Government set up the I.N.A. and 23,000 volunteers joined it.

The Provisional Government had ministers and departments. It enacted laws. It had its own finances, and later acquired territories (e,g. Andaman Islands). It declared war on Britain, and the army it set up ( the I.N.A.) fought against the British army in Burma and the Arakans.. It had its own organization,emblems and badges. The Provisional Government was recognized by the Axis Governments.

This being the position, Bhulabhai argued, the Provisional Government complied with all the requirements of a sovereign state.

Bhulabhai submitted that at one time the old idea was that only an independent sovereign state could validly declare war. This idea, however, created the vicious circle that a subject race would remain in perpetuity a subject race. Hence modern international law recognizes the right of subject people to get organized and wage a war for freedom.

Shri Desai submitted that if 10 villagers in India had rebelled against British rule, the matter may have been different. But where a stage is reached where the rebels have set up their own political organization and army, it is a war recognized by international law.. For instance, in the American Civil War from 1861 to 1865 both North and South had their own governments and armies. A similar example was that of the Spanish Civil War.

Shri Desai submitted that if insurgents even in independent countries can wage a civil war and acquire the status of belligerents, the greater must be the right conceded under International Law to a subject people who rise in revolt against foreign rule.

Shri Desai quoted extensively from works of eminent jurists specialized in international law, e.g. Oppenheim, Lawrence, etc. He referred to President Wilson's 14 points, the U.N. Charter, etc.he referred also to the American Declaration of Independence, 1776, the Greek War of Independence against Turkish Rule, Bolivar's struggles, etc.

Shri Desai submitted that it was a settled position in International Law that when two governments are at war with each other, the combatants acquire the status of belligerents, and the soldiers cannot be punished for murder, and other offences under the municipal laws. The matter passes from the domain of municipal law to that of international law. Amidst the clash of arms, the ordinary criminal law becomes silent. Consequently, he submitted, the charged I.N.A. officers were entitled to be treated as P.O.W.s

Bhulabhai's brilliance can be realized from the fact that he asserted that the very charge against the accused, of waging war, was his main defence, since it was recognized by international law. He referred to section 79 of the Indian Penal Code which states that " Nothing is an offence which is justified by law ", and submitted that International law was also law.

By his outstanding advocacy of India's right to freedom ( made when he was in failing health), Bhulabhai acquitted himself in the highest colours. In the words of his assistant in the case Dr. Katju " It was a great forensic performance, an argument well delivered in accordance with the highest traditions of the bar, and in furtherance of justice".

Why Justice G.P. Singh was not elevated to the Supreme Court.

One of the legendary Judges in India was Justice G.P. Singh, who was a Judge in the Madhya Pradesh High Court from November 1967, and became Chief Justice of that High Court in July 1978 and retired in January 1984.

Justice G.P. Singh was a Judge of the highest integrity and principles, and was also profoundly learned. His book 'Principles of Statutory Interpretation' is still regarded a classic.He was the senior of Justice J.S. Verma, who later became the Chief Justice of India.

Justice G.P. Singh deserved to be made a Supreme Court Judge by any standard. The reason why he was not elevated to the Supreme Court is a sad story, but which must be told.

After Justice Jagmohan Lal Sinha's judgment which held Mrs. Indira Gandhi guilty of election malpractice and disqualified her, the Government of India decided to pack the High Courts and Supreme Court with 'committed' Judges.

Accordingly, some time in the early1980s, the Central Government sent a list of 10 lawyers to Chief Justice G.P. Singh and asked him to recommend these names for being appointed Judges of Madhya Pradesh High Court.

Now the traditional practice was always that it was the Chief Justice who initiates the name, by sending recommendations to the Government. Here the process was reversed.

On examining these names, Justice G.P. Singh found all these10 persons undeserving to be appointed as a Judge. Consequently he wrote back to the Union Law Minister that he would not recommend these 10 persons as they were undeserving, and he would be failing in his duties if he recommended them.

As a result, Justice G.P. Singh was never brought to the Supreme Court, and he retired in January 1984.

On his retirement, Justice G.L. Oza became Chief Justice and he immediately recommended these very 10 names whom Justice G.P. Singh thought to be undeserving, and shortly thereafter they were appointed as Judges in the High Court.

Soon thereafter Justice Oza, who was no match to Justice G.P. Singh in any way, was elevated to the Supreme Court

My proposal regarding the National Judicial Commission

(1) The Collegium system has been artificially created by Judges in the Judges cases, since there is no mention of a Collegium system in Article 124(2) of the Constitution. The Judges virtually amended the Constitution in the Judges cases, which could legitimately only be done by Parliament under Article 368 of the Constitution.

(2) The Collegium systrem should be replaced by a National Judicial Commission consisting of 7 members, viz. the first 4 seniormost Supreme Court Judges( i.e. the CJI and the next 3 seniormost Judges), the Law Minister of India. the leader of the opposition, or if there is no leader of the opposition, the leader of the largest opposition party in the Lok Sabha ( or his/her nominee), and a distinguished jurist appointed by the President of India. Thus the Commission will have a majority of Judges, and thus the dominant voice will be of Judges. However the Government and the Opposition will also have a say in the matter.

(3) This 7 member Commission should first do a pre-scrutiny and then prepare a list of eligible and meritorious persons whom they have selected for being considered for appointment.

(4) The candidates in this list should be called for hearings before the Commission, which should be televised so that everyone in India can get to know about the proceedings. In these hearings the Commission members can, and should, ask the candidate about his past career, his views on several issues of public importance, and even his personal life. This is the process followed in U.S.A. when candidates nominated by the President have to appear before the Senate, where they are asked several questions.

When I suggested televising these proceedings in the NDTV panel discussion anchored by Sonia Singh, many members of the panel opposed the idea. But what is wrong with it ? In a democracy the people are supreme, and judges and other state authorities are only servants of the people, as the great French political philosopher Rousseau said. So should the master ( the people) not know what kind of servant is going to be appointed ? I believe they must know, to ensure transparency.

( Watch the complete interview with CNN IBN: http://ibnlive.in.com/cnnibnvideos/top-in/489095.html )

The Shahar Qazi of Allahabad

Syed Maqbool Hasan has been the Shahar Qazi in Allahabad for over half a century.

Although he is also the Imam ( head priest) of Jama Masjid in Allahabad, he has never taken any money from the funds of Jama Masjid. He earned his livelihood as an ordinary stamp vendor in Allahabad High Court. When I was a lawyer there ( 1970-1991) I used to see him sitting at the bottom of the stairs below the Bar Association Library, selling stamps. He wore a simple kurta pyjama, and on looking at him one could never make out that he is the Shahar Qazi.

Until he agrees, Eid cannot be declared in Allahabad. Since for declaring Eid 2 respectable Muslims must state that they have sighted the moon, he rigorously cross examines the persons claiming that they have seen the moon, and he also strictly applies the parameters required before declaring Eid. His integrity is of such a high order that everyone in Allahabad accepts his verdict.

Because of old age ( he must be now in his late 80s ) he has now retired, but before that he was coming to the High Court on a bicycle every working day.

In the 1986 communal riots in Allahabad he refused to take any police security, although it was offered to him. He lived a simple life, and put all the money he earned in educating his children. Today one of his sons is in U.S.A. and the other children are also well settled, some in business, and others in other vocations.

Religious tolerance

In today's ( 29.7.2014 ) 'The Hindu' it has been reported that in Gujranwala city in Pakistan a mob torched an Ahmadi colony and killed a woman and two girls over alleged blasphemy on Facebook.

I condemn this latest atrocity on Ahmadis, and I call upon all right minded persons of all communities in all countries to condemn it

It is alleged against Ahmadis that they do not accept Prophet Muhammad as the last Prophet, and believe that there was another Prophet called Ghulam Ahmed in the mid-19th century.

If the Ahmadis do not regard Prophet Muhammad as the last Prophet are they breaking anyone's head, or cutting off anyone's limbs ? Everyone should be left free to believe in whatever he wants to believe. Muslims can say that Ahmadis are not Muslims, but what right do they have to kill Ahmadis, burn their homes, bomb their mosques, and beat up their children, as has been happening for several decades in Pakistan ? This is nothing but goondagardi.

Sunnis believe that after Prophet Muhammad died there were 4 Khalifas successively, Abu Bakr, Omar, Usman, and Ali. Shias regard the first three as usurpers. Should Sunnis and Shias then fight each other.

Hindus go to temples and pray before idols, whereas idol worship is forbidden in Islam. Should then Hindus and Muslims fight each other ?

Christians believe that Jesus was the son of God, whereas Muslims believe that God has no son. Should then Muslims and Christians fight each other ?

In a subcontinent like ours with so much diversity we must have tolerance, particularly in religious matters, otherwise we will be continuously fighting with each other, which is precisely what our enemies want.

We should follow our great Emperors Ashok and Akbar who practised tolerance in religious matters.

Three Incidents to show the existence of democracies in Ancient India.

Democracies existed in ancient india, and to demonstrate this we may consider only three incidents ;


(1) In the Buddhist text 'Mahaparinirvan Sutra ' it is mentioned that when King Ajatshatru of Magadha was planning to attack the Vajjian democracy he sent a messenger to the Buddha for his opinion. Instead of speaking to this messenger, the Buddha said to one of his disciples : " Have you heard Anand that the Vajjians foregather often, and frequent the public meetings of their clan ? So long Anand as the Vajjians so foregather, and so frequent, the public meetings of their clan, so long they may be expected, not to decline, but to prosper.


(2) In the 'Avadana Shatak ', a Sanskrit Buddhist text of the second century B.C. it is mentioned that a group of merchants went from North India to the Deccan, and were asked by the King of the Deccan as to who was the King who ruled over North India ?
The merchants replied : 
" Deva, kechit deshah ganadhinah, kechit rajaadhinah ,iti "


Which means :

" Your Majesty, certain areas are under democratic governments, while others are under Kings "

(3) When Alexander the Great invaded India in 326 B.C. he found his toughest opposition from the Mallavas, who were a people under a democratic government ( see the Anabasis of Arrian ).

It’s time to amend law on contempt of court

The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.

But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience.

In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.

In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants.

Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.

This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb (1981) A.C. 303, “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.

“Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”.

In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”.

Sometimes an upright judge is unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced.

Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case ( Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion.

In Balogh vs Crown Court at Albon (1975) AC 373, the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action.

Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’.

He quoted Bentham, who said that when a dog does something nasty we beat him for it. Similarly, the laws in England become known only when someone is punished by the courts. The same is true about the law of contempt in India, and thus it is a standing threat to freedom of speech.

To illustrate, in Duda’s case AIR 1988 SC 1208, a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank magnates.

He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man the court would have taken no action.

Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the certainty or consistency in the law ?

We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.

It follows that the contempt power cannot be exercised because people are criticizing a judge. It can only be exercised if someone makes the functioning of the judge impossible eg if while a judge is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or threatens a witness.

If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court.

But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.

I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.

(Published in The Times of India on 28/07/2014)

Why I will never write my memoirs

There was a comment on Facebook by someone that I should write my memoirs. I replied that I will never write my memoirs. The person asked why ? 

I said that by mentioning just one incident ( the corruption by a Madras High court Judge ) I was furiously attacked by many people. Mentioning all incidents will be opening up a Pandora's box. I have been deep inside the judicial system at several levels ( lawyer, High Court Judge, Chief Justice, and Supreme Court Judge ), and so have seen the darker side of the judicial system intimately. To disclose everything would raise such a storm that I may not be able to withstand it. 

So let me remain quiet and preserve my peace of mind.

Lady Lawyers

When I started law practice in the Allahabad High Court in 1970 there was only one lady lawyer coming regularly to the High Court. Sometimes a new young lady lawyer was seen, but after a few months she disappeared. It transpired that she had been coming to the High Court only to while away time till she got married.

A lawyers profession was regarded earlier as unfit for ladies as it was regarded rough and tough , and therefore only fit for males.

Today there would be about 500 lady lawyers coming regularly to the Allahabad High Court. This is no doubt only about 5% of the total number of lawyers in the High Court, but 5% is better than 0%. In Madras High Court, where I went as Chief Justice there would be about 600 lady lawyers, and the same would be the approximate number in Delhi High Court and the Supreme Court, where I was Chief Justice and puisne Judge. 

For ladies no doubt it is not easy to be a lawyer, as she has also to look after her family and home. But to the credit of lady lawyers they are bravely doing their job both of running a law practice, and looking after their families and home.

When I became Acting Chief Justice of Allahabad High Court some lady lawyers came to me and said that they had no place to sit ( in between case hearings), and there was no toilet for ladies. I allotted two big halls for lady lawyers, with wash rooms, toilets, kitchen, furniture, etc and got it air conditioned. It was named the Cornelia Sorabji Hall, after the first lady lawyer in India, Cornelia Sorabji ( 1866-1954 ) who was admitted as a lawyer in the Allahabad High Court in 1924 when the bar on lady lawyers to practice in India was lifted

When I went to Madras High Court as the Chief Justice I allotted some rooms in the High Court premises to serve as a creche, where young married ladies ( lawyers and registry officials ) could leave their children when they came to the High Court, and could take them back home when their work was over. A creche is a modern concept, for keeping children between 1-3 years, while the mother was working. The children are taken care of there by a staff, and given opportunities to learn while they play.

Rigging Cricket Matches

When I was in Allahabad there used to be annually on every 26th January ( Republic Day ) a cricket match between the Allahabad High Court Bench and the Bar ( I do not know whether the practice is still followed ). As long as I was a lawyer I often captained the Bar team.

Before the match I would call my team mates and tell them " Look here chaps, you know which side your bread is buttered. So for heavens sake don't get any stupid ideas and win the match, otherwise from tomorrow all your cases will be dismissed. These Judges are a miserable lot, as they are all hen pecked at home. So give them a moment of happiness, and let them win, and from tomorrow you will get a lot of stay orders and bail orders ."

I would then explain the strategy. When the Judges were batting, drop the catches, do not try to run them out, fix the umpire so that he does not give any lbw decisions, etc. When the lawyers were batting, they should give easy catches, swing the bat wildly so that it does not connect with the bat and the batsman is bowled, etc

In this way, the Judges team always won.

When I became a Judge, my heart was still with the lawyers. So I would call the captain of the lawyers team and tell him to advise his team mates to follow the above strategy if they knew what was good for them. Again the Judges team would win.

In this way the Judges team always won, and the Judges were happy. Judges are notoriously hen pecked at home, so they got some relief when in Court the lawyers, instead of arguing on the merits of the case, would tell them of their brilliant performance on the cricket field the previous day ! This made it easy for the lawyers to get favourable interim orders.

My List of Best Short Stories of O.Henry

O. Henry's short stories are one of my favourite reading material when I wish to relax and be entertained.

As in the case of other writers, some of his stories are superb, while others are mediocre.

I am giving a list of 18 short stories which are, according to me, his best ( though he has written over a hundred short stories). I am sure you will enjoyreading them, as I was :

1. Two Renegades

2. The Champion of the Weather

4. The Atavism of John Tom Little Bear

5.The Shamrock and the Palm

6. Law and Order

7. The Hiding of Black Bill

8. The Lonesome Road

9. The Ransom of Red Chief

10. The Buyer from Cactus City

11. New York by Camp Fire Light

12. Friends in San Rosario

13. The Hand that Riles the World

14. Jeff Peters as a Personal Magnet

15. The Whirligag of Life

16. A Departmental case

17. The Phonograph and the Graft

18. At Arms with Morpheus

All these stories are available online.

The true facts about the corrupt Madras High Court Judge

Many people have asked why i did not speak out in 2005 about the incident relating to the corrupt Judge of Madras High Court when it happened that year. My reply is : I was a sitting Judge  (Chief Justice of Madras High Court) at that time, and judicial discipline and the unwritten code of conduct requires that a Judge should not go into the public domain. So I could not have gone to the press. But I was not silent. I informed the then Chief Justice of India, both in writing as well as orally when I met him in Delhi, about the full facts, and requested him to order a secret IB enquiry, which he did, and the IB report proved that what I said about that Judge was correct. I retired in September 20011, and it was only when some Tamilians wrote on my facebook page that I should write about some of my experiences as Chief Justice of Madras High Court that I wrote about it.

 Moreover, the important question is not about timing, but whether what i said was correct or not. I posed 6 specific questions for Justice Lahoti ( the then CJI) to answer, but he did not, and instead said that he will not stoop to the level of someone else ( implying me). Let the people decide who has stooped. Justice Ruma Pal, who was at that time on the 3 Judge Supreme Court Collegium ( consisting of Justices Lahoti, Sabarwal and Ruma Pal ) has vindicated me  ( see front page of Hindustan Times today ). Also, the letter of the then Prime Minister Manmohan Singh putting pressure to continue that corrupt Judge has now come to light, as well as the written comment of Justice Lahoti that the sensitivities of the government should be taken into account ( meaning that the Judges should surrender to political pressure ).

In today's Punjab Kesari Hindi Newspaper (24.07.2014) it is stated in the front page in a special editorial by Mr. Ashwini Kumar, the editor, that if Justice Ashok Kumar was a corrupt judge, I should not have recommended him for elevation to the High Court. In fact, I never recommended him but it was my predecessor who recommended him. I became Chief Justice of Madras High Court in November 2004, whereas Justice Ashok Kumar had become the Additional Judge of the High Court in April 2003.

In the said editorial Mr. Ashwini Kumar asks why I did not do anything when I found he was corrupt. The truth is that I immediately requested the CJI to get a secret IB enquiry held, which was held and he was found to be corrupt. Thereafter, it was for the CJI to do the needful. I could not go into the public domain as it is against judicial discipline and unwritten code of conduct for judges that they should not go into the public domain.

I Am Vindicated

Mr. Hansraj Bharadwaj, former Union Law Minister, while talking to Arnab Goswami on Times Now channel, said that I ( Markandey Katju ) discriminated against Scheduled Castes. 
This is absolutely untrue. In the list of 20 names I recommended for Judgeship of Madras High Court, 4 of the names were of members of the Scheduled Castes, and all 4 were appointed.
As regards Manmohan Singh and Justice Lahoti, the truth has now been exposed on T.V. channels, and I have been vindicated

Justice Lahoti obfuscates

I had asked Justice Lahoti 6 specific questions ( mentioned in my previous post ). When Times Now channel asked him about them he said ( as quoted in Times Now ) :

" I don't believe in stooping to anyone's level. Look up the records for yourself and see for yourself. I have not done anything wrong "

Thus Justice Lahoti does not reply to any one of my 6 specific questions, but deliberately obfuscates. Why does he not say specifically whether it is true or not that I requested him to get an IB enquiry held to find out whether the Judge concerned was indulging in corruption, whether he ( Justice Lahoti ) on my request ordered an IB enquiry, whether he ( Justice Lahoti ) subsequently telephoned me from Delhi when I was in Chennai that the IB has reported that the Judge concerned is indeed indulging in corruption, and why despite this adverse IB report he got the Judge's term extended, etc ?

None of the 6 specific questions I asked Justice Lahoti have been replied specifically by him. Instead he accuses me of stooping low.

Let the public themselves decide who is stooping low.

Some questions for Justice Lahoti

Justice Lahoti, the former Chief Justice of India, when contacted by some media people about my statement which was published on my blog and in Times of India yesterday, generally remarked that he has never done anything wrong in his life. He has not gone into any specifics, so let me put him some specific questions :

1. Is it , or is it not, correct that I first wrote him a letter from Chennai, stating that there were serious allegations of corruption about an Additional Judge of Madras High Court, and therefore he ( Justice Lahoti ) should get a secret intelligence enquiry held against that Additional Judge,and thereafter I personally met Justice Lahoti at Delhi and again requested for a secret IB enquiry against the Additional Judge about whom I had received several complaints, and from several sources, that he was indulging in corruption ?

2. Is it, or is it not, correct that on my request Justice Lahoti ordered a secret IB enquiry against that Judge ?

3. Is it, or is it not correct, that a few weeks after I personally met him in Delhi and then returned to Chennai, he telephoned me from Delhi ( while I was at Chennai ) and told me that the IB, after thorough enquiry, gave a report that indeed the Judge was indulging in corruption ?

4. Is it , or is it not, correct that after receiving the adverse IB report against the Additional Judge, Justice Lahoti, who was then Chief Justice of India, called a meeting of the 3 Judge Supreme Court Collegium, consisting of himself, Justice Sabarwal, and Justice Ruma Pal, and the 3 Judge Collegium, having perused the IB report recommended to the Government of India not to extend the 2 year term of that Additional Judge ?

5. Is it , or is it not, correct that after that recommendation of the 3 Judge Collegium of the Supreme Court was sent to the Government of India, he ( Justice Lahoti ), on his own, without consulting his 2 other Supreme Court Collegium colleagues, wrote a letter to the Government of India asking the Government to give another 1 year term as Additional Judge to the concerned Judge ?

6. If indeed the IB reported, after an enquiry, that the Judge was indulging in corruption, why did he ( Justice Lahoti ) recommend to the Government of India to give that corrupt Judge another term of 1 year as Additional Judge in the High Court ?

Some people have commented about the timing of my statement. What happened was that some Tamilians had commented on Facebook that I am posting several matters on my Facebook post, so I should also post some of my experiences in Madras High Court. Then I started posting about my experiences there, and it was at time I remembered this experience too, and posted it.

How a corrupt Judge continued in the Madras High Court

There was an Additional Judge of the Madras High Court against whom there were several allegations of corruption. He had been directly appointed as a District Judge in Tamilnadu, and during his career as District Judge there were as many as 8 adverse entries against him recorded by various portfolio Judges of the Madras High Court. But one Acting Chief Justice of Madras High Court by a single stroke of his pen deleted all those 8 adverse entries, and consequently he became an Additional Judge of the High Court, and he was on that post when I came as Chief Justice of Madras High Court in November 2004.

That Judge had the solid support of a very important political leader of Tamilnadu. I was told that this was because while a District Judge he granted bail to that political leader.

Since I was getting many reports about his corruption, I requested the Chief Justice of India, Justice Lahoti, to get a secret IB enquiry made about him. A few weeks thereafter, while I was in Chennai, I received a call from the Secretary of the CJI saying that the CJI wanted to talk to me. Justice Lahoti then came on the line and said that what I had complained about had been found true. Evidently the IB had found enough material about the Judge's corruption.

Since the 2 year term as Additional Judge of that person was coming to an end I assumed he would be discontinued as a Judge of the High Court in view of the IB report. However what actually happened was that he got another 1 year appointment as an Additional Judge, though 6 other Additional Judges who had been appointed with him were confirmed and made permanent Judges of the High Court.

I later learnt how this happened. The Supreme Court Collegium consists of 5 seniormost Judges for recommending names for appointment as a Supreme Court Judge, and 3 seniormost Judges for dealing with High Courts.

The 3 senior most Judges in the Supreme Court at that time were the Chief Justice of India, Justice Lahoti, Justice Sabarwal, and Justice Ruma Pal. This Supreme Court Collegium recommended that in view of the adverse IB report the Judge should be discontinued as a High Court Judge after his 2 year term was over, and this recommendation was sent to the Central Government.

The Central Government at that time was the UPA Government. The Congress was no doubt the largest party in this alliance, but it did not have a majority in the Lok Sabha, and was dependent on support by it allies. One of such ally was the party in Tamilnadu which was backing this corrupt Judge. On coming to know of the recommendation of the 3 Judge Supreme Court Collegium they strongly objected to it.
The information I got was that Prime Minister Manmohan Singh was at that time leaving for New York to attend the U.N. General Assembly Session. At the Delhi airport he was told by the Ministers of that party of Tamilnadu ( who were Congress allies ) that by the time he returns from New York his government would have fallen as that Tamilnadu party would withdraw support to the UPA ( for not continuing that Additional judge ).

On hearing this Manmohan Singh panicked, but he was told by a senior Congress minister not to worry, and he would manage everything. That Minister then went to Justice Lahoti and told him there would be a crisis if that Additional Judge of Tamilnadu was discontinued. On hearing this Justice Lahoti sent a letter to the Government of India to give another term of 1 year as additional Judge to that corrupt Judge, ( I wonder whether he consulted his two Supreme Court Collegium members ),and it was in these circumstances this corrupt Judge was given another 1 year term as Additional Judge ( while his 6 batch mates as Additional Judges were confirmed as permanent Judges ). 

The Additional Judge was later given another term as Additional Judge by the new CJI Justice Sabarwal, and then confirmed as a permanent judge by the next CJI Justice K.G. Balkrishnan, but transferred to another High Court.

I have related all this to show how the system actually works, whatever it is in theory. In fact in view of the adverse IB report the Judge should not even have been continued as an Additional Judge

My Experiences as Chief Justice of Madras High Court

I was Chief Justice of the Madras High Court in 2004-2005. Some Tamilians have requested me to write something about my experience there on facebook.

When I received the order of the President of India appointing me Chief Justice of Madras High Court in November 2004 I was at Allahabad as Acting Chief Justice of that Court.

I telephoned the Madras High Court and spoke to the Acting Chief Justice, Justice N.Dinkar. Since I was reaching Chennai on Friday at about 1 or 1.30 p.m. I asked him to request all brother and sister Judges of the Court not to come to the airport to receive me, as it was a working day, and it would not be proper to abandon their Courts at working hours. I remembered reading the autobiography of Chief Justice Chagla of Bombay High Court, who wrote that when the Chief Justice of U.S. Supreme Court, Earl Warren, came to Bombay during Court hours of the Bombay High Court, Chief Justice Chagla sent the Registrar of the High Court to the airport to receive him. After Court hours Chief Justice Chagla went to see Chief Justice Warren, and apologized for not personally coming to the airport to receive him as it was court hours. Chief Justice Warren then told Chief Justice Chagla that he acted rightly, and in America the Judges do the same.

I was told that there was a practice in the Madras High Court for all the Judges coming to the airport to receive the new Chief Justice even during Court hours, but I thought that this would not be appreciated by the public, as they would think the Judges are doing sycophancy of the Chief Justice. I told Justice Dinkar that the Judges were welcome to meet me after Court hours at my residence. Accordingly, only lawyers and the Registry officials received me at the airport.

The Judges came to meet me at my residence after Court hours, and we had long talks. I told them they would never need an appointment to meet me, and, unless I was otherwise engaged, could meet me at my residence or chamber whenever they wanted to, and I said the same to the officials of the various lawyers associations.

I was given a warm welcome by the bench and bar in a function and dinner.

At that time the High Court had a sanctioned strength of 49 Judges ( it is now 60), but there were only 26 incumbents, and some more retirements were to take place soon.

A bench of the High Court had recently been created in Madurai, and the rules required that at least 5 Judges should sit there.

Now Madurai was a small town as compared to Chennai. All Judges wish to stay in big cities as there are better educational and job opportunities for children in big towns. So no Judge wanted to sit for long in Madurai. I remember receiving a telephone call from a Judge sitting in the Madurai bench who started crying over the telephone, and said that the previous Chief Justice had posted him in Madurai without his consent, and he had been there for 3 months and had developed blood pressure. I told him that if he could wait for a few days i was going to create a system, after consulting all Judges, about sitting of Judges in the Madurai bench ( till then there appeared to be none ).

I constituted a committee of the 3 senior most judges to consider the matter and give me their report at the earliest. This report was then placed before the Full Court of the High Court, and broadly confirmed. Under this system, 5 Judges would go to Madurai for 2 months, and on their return, the next batch of 5 Judges would go. But I never posted any Judge without taking his consent. After all, a Judge may have personal problems which made it difficult to leave Chennai at a particular time. I also told the Judges that if any of the 5 Judges sent to Madurai had an emergency which required him/her back in Chennai before his 2 month posting was over he could inform me and I would personally go and replace him for the balance period.

Before going to Chennai I had spoken on telephone to Justice Venkatachaliah to seek his blessings, as I have always regarded him as a father figure. He told me that in Madras I must give respect to each and every one of the brother and sister Judges.

Unfortunately, many Chief Justices of High Courts treat brother and sister Judges as subordinates. I am told about one Chief Justice that he would sometimes telephone a brother Judge at 10 p.m and tell him, without taking his consent, that he had to sit next day in some distant bench, for which a flight had to be taken the same night or early next morning. To my mind this was not proper. The Chief Justice is only first among equals, and not a headmaster.

Following the advice of Justice Venkatachaliah, I always gave respect to brother and sister Judges. I told them that we are one family, their problem is my problem, and vice versa. I would never compel a Judge to sit in Madurai, or do something, without taking his/her consent.

Justice Venkatachaliah also gave me another invaluable advice. He told me that many Chief Justices think that their main job is administrative, and they neglect judicial work. This was a fallacy. He said that the main job of the Chief Justice was to give leadership to the Court on the judicial side, by giving outstanding judgments. Following this advice i delegated almost all administrative work to committees of brother and sister Judges. After all, they were local people who knew about Madras High Court, whereas I was a stranger. Also, this relieved me of administrative work so that I had more time to write judgments.

One of the first things which was done by me was to constitute a 3 judge committee to allot lawyers chambers in the new building which had been built for this purpose, but for some reason was lying unoccupied for 3 years. The committee of Judges did an outstanding job, and within two months chambers were allotted to lawyers in accordance with a rational system.

As I mentioned before, almost half the posts of Judges in Madras High Court were lying vacant when I came to Chennai, and they had to be filled in. I was determined to have good judges in the High Court. After all, an institution is really the human personnel who are manning that institution. A High Court is not the beautiful building of the Court, or the green lawns or colourful curtains. A High Court is the Judges who are manning it, they should be first class people.

Although under the decision of the Supreme Court in the Judges Case only the Chief Justice and 2 seniormost judges of the High Court were to recommend names for appointment, I requested the first 12 judges in seniority to give me a list of lawyers they thought deserved to be elevated, and I also consulted about 5 or 6 very senior lawyers. Some names were common in many lists, but enquiries were made even about them. In this way after about 2-3 months daily excercise a consensus of 20 names emerged, and I recommended these. I told the Chief Justice of India, Justice Lahoti, about the methodology I had followed, and said that none of these persons recommended had any connection in any manner with me. So it was now entirely upto him to accept them or reject them.

I must say to the credit of the then Chief Minister, Ms. Jayalalitha ( who is also the present Chief Minister )that she never interfered in this process, and never pressurized me to recommend any name for Judgeship, nor did she ever interfere with judicial functions in any manner.Throughout my stay as Chief Justice there was never any problem, as she respected the independence of the judiciary.
I regret that I cannot say the same about another political party in Tamilnadu, who, through their representatives put tremendous pressure on me to recommend certain names for Judgeship whom I found to be totally undeserving. Some of these persons were never even seen in courts, though technically they were enrolled as lawyers. These were obviously party men of that political party which wanted to pack the Madras High Court with its men., but I refused to succumb to this pressure.

I had taken an oath to myself that I would do my duty to Madras High Court, although my parent High Court was Allahabad High Court. The maximum punishment which could be given to me was to refuse to make me a Supreme Court Judge, but I was prepared for this punishment, and would do my duty to Madras High Court, come what may.

On receiving my 20 recommendations the Supreme Court Collegium approved 17 of them, which was a record. But the same political party which sought to pressurize me would not let these appointments go though, and ultimately it was on a P.I.L. by the Madras High Court Advocates Association and an order of the Supreme Court that those appontments of 17 Judges was made, which was a record for Madras High Court. These Judges had been carefully scrutinized by me and my Collegium members before recommending them, and I am happy to note that most of them have justified my expectations.

I will write more about my experiences in Tamilnadu in subsequent posts, but I would like to add here that the people of Tamilnadu throughout my stay there gave me great love and affection, for which i will be ever grateful.