Independence and impartiality of the judiciary: Justice Katju’s conversation with a sitting Judge

Justice Markandey Katju
Justice Markandey Katju

A conversation with a Judge

By Justice Markandey Katju

This morning I had a long telephonic conversation with a senior sitting Supreme Court Judge of India.

I told him that the Indian judiciary has in recent years gone down in the public esteem because it does not do its solemn duty of upholding and protecting the fundamental rights of the people. Many people who speak against the Govt are arrested by the police on false and frivolous charges like sedition, on the basis of fabricated evidence, and often kept in jail for long periods, while the judiciary turns a Nelson’s eye to these gross violations of the right to freedom of speech and expression guaranteed by Articles 19(1)(a), and the right to personal liberty guaranteed by Article 21 of the Constitution, like Bheeshma Pitamah closing his eyes when Draupadi was being publicly disrobed ( cheer haran ), instead of taking suo motu cognizance and stopping these outrages. Minorities are often victimised, despite the guarantee of secularism in Article 25, and sometimes lynched, despite the laws against murder and other crimes.

I told the Judge that surely there are some upright Supreme Court Judges who know what the public thinks about them, and he should talk with them, and they should take some steps to restore the image of the Indian judiciary.

He replied that unfortunately there has been hardly any interaction between Supreme Court judges for the last one year or so, i.e. since the COVID pandemic started, as the judges are only doing online hearings, and do not meet.

Supreme Court judges usually assemble at 10.15 a.m. in the judges lounge, chit chat on various topics over a cup of tea or coffee, and then go to their courtrooms at 10.30. All judges have lunch together on Wednesdays. On other days too  judges often have lunch together in groups. They also meet in private dinners or other occasions. So they often interact with each other. But this has stopped since about one year now, so there is no occasion to discuss the matter I mentioned.

He also complained of the failure of the Government to fill in vacancies. For instance, the sanctioned strength of the Supreme Court is 34, and presently there are 4 vacancies. There will be 5 more retirements this year, so there will be 9 vacancies. A senior member of the Supreme Court Collegium, who is retiring this year, has said that he will oppose any recommendation to the Supreme Court unless Justice Akil Kureshi, presently Chief Justice of Tripura is recommended also.

Justice Kureshi, while a Judge in Gujarat High Court, had passed an order sending the present Union Home Minister, Amit Shah, to jail. So the BJP Govt is totally opposed to his elevation, and in fact got him appointed to the Tripura High Court, instead of the much bigger Madhya Pradesh for which he had earlier been recommended.

If the Supreme Court Collegium recommends his name for elevation the Govt will just sit on the file and do nothing.

This is the common practice of the Govt. Under the decision of the Supreme Court in the judges case, if the Govt has some objection to any name recommended by the Collegium, it can return the file with its objection, but if the Collegium reiterates the name he must be appointed. To circumvent this, what the Govt has been doing is to just sit on the file of the name recommended, if it does not for some reason wish to make the appointment, and neither approve it nor send the file back to the Collegium with its objection.

The result is that vacancies continue for long.

For instance, the Delhi High Court, which has a sanctioned strength of 60 judges, has presently only 31 incumbents. Consequently cases cannot be heard for years. How can a judge hear 100 cases listed before him on a single day ? The arrears in the Delhi High Court have risen from about 60,000 a few years back to about 99,000 today.

Some time back the Delhi High Court Collegium had recommended a large number of names for appointment as High Court judges, but the Govt picked only 2 names ( evidently convenient to it ) and appointed them. Thus, the Govt often adopts a pick and choose policy, appointing only those who are politically convenient to it. What then happens to the independence and impartiality of the judiciary?

Judges in the Supreme Court are nowadays having COVID vaccination ( the judge I spoke to told me he has had one shot today, the next one being after 4 weeks ), so hopefully the Court will resume regular hearings after 2-3 months. One can only hope that some much-needed changes take place thereafter so that the public esteem of the judiciary is restored.

(Justice Markandey Katju is former Chairman, Press Council of India and former Judge, Supreme Court of India.)

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