Sanjiv Bhatt

Justice Markandey Katju has pilloried the Supreme Court for its pronouncements on unclean hands of Sanjiv Bhatt in approaching the court. He laments that the Court did not give an opportunity to Bhatt to explain his action before condemning him. Katju's anger is palpable. Says he:

". An upright police officer who bravely took on the crooked Establishment and exposed its misdeeds, has been castigated by the Court in sweeping language which seems calculated to please the ruling party.

All these are serious sweeping and intemperate allegations against Bhatt's character, and so it was incumbent on the Supreme Court to have issued a notice to Bhatt asking him why strictures be not passed against him, as has been repeatedly observed by the Supreme Court itself.

Bhatt was being attacked by the entire Establishment, which included not only BJP politicians but even his own fellow police officers who shamelessly denounced him to please their political masters. Where else could he appeal to but politicians of other parties, NGOs, activists, etc ?

Moreover, in Sanjiv Bhatt's case, there was not even a requirement to make such observations of rebuke against Bhatt, and the Supreme Court has repeatedly said that strictures should not be passed against anyone unless that is absolutely essential. . Bhatt had filed his appeal in the Supreme Court alleging he was being targeted by the Gujrat govt.for disclosing certain facts about the post Godhra killings of Muslims. At most the Supreme Court could have rejected his plea, but where was the need for berating him and hauling him over the coals ?"

If Sanjiv Bhatt is aggrieved, he has every right to approach the judiciary  to clear his name. It is not clear how the learned former judge is convinced about uprightness of Bhatt. Katju has also stated that there are allegations of bribery against the CJI, H.L.Dattu. A specialist in quantification, he has also remarked that 50% of judges in higher judiciary and 75% in lower judiciary are corrupt. He has claimed that Indian judiciary is beyond redemption.

Judicial mess

Justice Markandey Katju has stirred up a hornet's nest by disclosing certain unsavoury details about appointment of an additional judge in the Madras High Court. The facts of the case have been questioned by some and the timing of disclosure has been lambasted by many.

The facts are indisputable because they had been verified earlier in a public interest litigation filed by Shanti Bhushan (Shanti Bhushan and another vs Union of India - 2007) in the Supreme Court. (Though one may disagree with Bhushan's political views, he deserves respect for championing the cause of justice in many petitions he has filed.)

Timing of disclosure may be motivated. All actions have a motive. Motives behind an action do not necessarily delegitimise the action. It will be hypocritical to pretend otherwise.

So, where do we go from here? The most important learning points from this incident are that political interference in judicial appointments is undeniably present and that higher judiciary lacks the moral courage to resist political pressure. Facts like that Manmohan Singh was an active collaborator in commitment of egregious impropriety are too well known to be recounted here. So we stay away from the obvious.

Therefore we need to create a system or modify the present system of judicial appointments so that political pressures will be kept at bay and the selectors of judges will act ethically.

Formation of a judicial appointments commission whose members will be nominated by a team consisting of the prime minister, leader of opposition, chief justice of the supreme court etc. has been advocated by many legal luminaries. This suggestion is blatantly fraught with political gaming and therefore will only transport us from frying pan to fire. It is better to keep all politicians including the prime minister and the leader of opposition from this exercise. They have repeatedly proved their incapacity to rise above narrow politics.

The present collegium system is theoretically sound. It was misused because judges with feet of clay had become senior most judges. In addition, opacity characterised the functioning of the collegium.

Laying out clear criteria for selection of judges and mandating transparency in collegial decision-making processes are the way to stem the rot in judiciary. The rest is a matter of detail.

Added on 28th July:

It is uninspiring to note that erudite lawyers like Soli Sorabjee and Fali Nariman are questioning the wisdom of Katju's criticism of delinquent chief justices. Their argument is specious and misleading. According to them, Katju should not comment on Justice Ashok Kumar because the latter is no more. Katju should not comment on chief justices because it will bring down the image of judiciary. So, avoid comments on the dead and the living. What are they afraid of?