Justice Katju reacts to Dr Mohan Gopal on Judiciary

Amalendu Upadhyaya
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Response to Dr Mohan Gopal, former VC of National Law School of India

By Justice Markandey Katju

Dear Dr Mohan Gopal

I am Justice Katju, former Judge of the Supreme Court of India

I saw your interview by Karan Thapar, and wish to comment on it.

(1) You have rightly said that the attempt of the present govt is to make a theocratic, not constitutional judiciary.

That having been said, I think you have been somewhat economical of the truth.

You should have mentioned in some detail that this attempt to create an unconstitutional judiciary is nothing new. It started from the time of Indira Gandhi, who after the Allahabad HC judgment disqualifying her was determined to have a ‘committed judiciary’, that is, a judiciary upholding her autocratic rule, not the Constitution.

That is why we got the black Misa judgment ( ADM Jabalpur vs Shivakant Shukla ) stating that during the Emergency a citizen had no right to life or liberty.

Mrs Gandhi got her sycophants like Justice AN Ray and Justice MH Beg appointed CJIs superseding their seniors.. Justice Ranganath Misra, another sycophant of Congress was appointed CJI, and was later appointed member of the Rajya Sabha ( like Gogoi ) as a reward.

In 1984 16 judges were appointed in the Allahabad HC, and 10 in Madhya Pradesh HC, almost all of whom were Congress sycophants and undeserving ( by pressuring the Chief Justice of the HC to recommend their names ).

Justice RC Srivastava, who had been appointed an Addl Judge of Allahabad HC for 2 years during Janta party rule, was not confirmed when Mrs Gandhi again came to power in 1980 because he was junior counsel assisting Mr Shanti Bhushan in the election petition against Mrs Gandhi, although he was a competent lawyer..

I can give scores of other such examples to show that appointing judges who could be relied upon and not committed to upholding the Constitution is nothing new.

You will say these committed judges were not theocratic judges. But how does that matter ? They were committed to Mrs Gandhi, not the Constitution. So your distinction will be facetious. Judges who say that a citizen has no right to life or liberty had also ‘vacated the Constitution’ ( to use your own language ), but you conveniently do not utter a word about this.

(2) You talk of the SC Collegium. Let me tell you something which Justice Rohinton Nariman told me. He was number 2 in seniority in the SC ( Ramanna was the CJI ) when he retired on 12th August 2021, and did not allow any name to be recommended unless Justice Kureshi was also recommended ( as you have mentioned ).

However within a few days of Rohinton’s retirement 9 names were recommended by the SC Collegium for appointment to the SC, and they were immediately appointed. This implies that the other 4 Collegium members and the incoming member had met ( behind Rohinton’s back ) and decided to recommend these 9 names which the govt obviously wanted..

Rohinton told me that when he was in the Supreme Court these names had been suggested by the govt, but Rohinton had strong objection to many of them, and did not allow them to be recommended ( for various reasons which he told me, but I am not at liberty to disclose ).

I may, however mention the name of Justice Murlidhar, who was senior to Justice Hima Kohli in Delhi High Court ( and according to Rohinton far more meritorious than her), but he was not recommended for elevation to the SC though Hima Kohli was ( for reasons known to all  ).

I am saying all this because you seem to have a lot of faith in the Collegium and the present CJI, and have said that, ”the problem has been largely addressed ”

(3) You talk of the power of the people, and going to the public. Do you seriously think that when people go to vote they consider all this ? They go largely by caste and religion, as everyone knows. So you are talking drivel.

(4) You wriggle out of the Ayodhya verdict ( of which Chandrachud was a member ) when Karan confronted you, by putting all the blame on the addendum, and say that the verdict was within the Constitutional framework. But read this :

(5) Towards the end of the interview you say that there should be a ‘rainbow’ representative judiciary, consisting of judges from different castes, religions, regions and economic groups, and say that this will be ‘a vaccine against autocracy’. Let me tell you that a litigant wants his case to be heard by an upright and competent judge, and his caste, religion, etc are immaterial.

(6) As regards judicial review of such recommendations, we have seen the fate of the petition against Victoria Gowri. However, even after the recommendation anyone can write to the CJI and meet him to acquaint him of some relevant facts adverse to the person recommended, in which case it is open to the CJI to reconvene the Collegium, and reconsider the recommendation, as was done in the case of Justice PD Dinakaran, then CJ of Karnataka HC, against whom there were serious allegations, and the recommendation to appoint him to the SC was withdrawn.

Please let me have your response to this at your early convenience

Justice Katju


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