Strange story of Justice Katju

For the first time in India’s history, a retired judge of the Supreme Court appeared before the court and pleaded for review of a judgment which he had criticised through his Facebook and blog posts.

In an equally unprecedented way, the apex court issu-ed a contempt notice to the former judge for certain remarks which he made in the posts.

The skirmish between former judge Markandeya Katju and sitting judge Justice Ranjan Gogoi created dramatic scenes in the court. It even created a ruckus from some of the lawyers present in the court hall. Of course, it led to an open fulmination from justice Katju himself. Thus, the former judge, as usual, again hit the headlines, for unusual reasons.

The Soumya case from Kerala had caught national attention for the brutality with which the girl was raped and thrown out from a running train which ultimately led to her death. The trial court convicted the accused for the offences including rape and murder and
sentenced him to death. The High Court confirmed the verdict.

The Supreme Court while affirming the conviction for rape and some other offences, held that the prosecution failed to prove murder. Thus the sentence was essentially converted to one for life imprisonment.  

Justice Katju said that the judgment carried certain “fundamental flaws”. He interalia said that the verdict, while exonerating the accused of the charge of murder, has ignored the third explanation to Section 300 of the IPC which says that if culpable homicide was “with intention of causing injury” and if the injury was sufficient to cause death, the action would amount to murder, on victim’s subsequent death.

Very many ‘polymathic’ remarks made by Justice Katju on  the topics ranging from Mahatma Gandhi’s relevance to Kashmir insurgency are queer, quixotic or sometimes irresponsible. Often, his imperious reflections did not carry the intellectual maturity expected of a former judge of the world’s most powerful apex court.

Article 124(7) of the Constitution creates an embargo against a former judge of the Supreme Court from pleading or acting in any court, including the Supreme Court. This interdiction, in la affaire Katju was honoured only in its breach.

The court’s decision to issue notice to Justice Katju for contempt could ignite a national discourse on the topic in India, for a variety of reasons. According to Justice Gogoi, certain portions in the posts were “personal remarks” on judges rather than an evaluation of the judgment. It is well settled that even a scandalous statement about the judges need not be per se contemptuous. The distinction between the defamatory statements about judges and the offence of contempt is well settled and well recognised.

Rather than the technical distinction, in a country that advocates free speech, it is the attitude and judicial perception on the use of contempt power that matters.

In Metropolitan Police Commissioner’s case, Lord Denning famously said: “Let me say at once that we will never use this jurisdiction as a means 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.”

Indian approach

The Indian judicial perspective on the topic also has been equally liberal and democratic. In Brahma Prakash Sharma (1953), Justice Patanjali Sastri said: “When attacks or comments are made on a judge or judges, disparaging in character and derogatory to their dignity, care should be taken to distinguish between what is a libel on the judge and what amounts really to contempt of court. The fact that a statement is defamatory so far as the judge is concerned does not necessarily make it a contempt.”

Justice Gajendragadkar was on the dot when he said: “Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”

In the past, there were instances when lawyers, journalists, writers and politicians faced action for contempt.  Shiv Shankar, the former Union law minister who openly bemoaned that “antisocial elements – that is FERA violators, bride burners and a whole horde of reactionaries – have found their heaven in the Supreme Court” was however exonerated of the charges (P N Duda v P Shiv Shankar, 1988).  

This judgment is often taken as an epitome of the judicial magnanimity that favours the disuse of the court’s power in a jurisdiction where the court itself becomes the complainant and the adjudicator. It is yet to be seen how the Supreme Court will deal with the strange case of Justice Katju.

(The writer is a lawyer, Supreme Court and Kerala High Court)