Former SC judge Markandey Katju's blog suggests that three former Supreme Court CJIs helped extend and promote an allegedly corrupt judge in Tamil Nadu. It suggests that the Supreme Court is vulnerable to political pressure.

We saw a huge fuss being made when the NDA government opposed the appointment of Gopal Subramanium as a Supreme Court judge. We saw the Chief Justice of India (CJI), RM Lodha, vow that he would not allow the independence of the judiciary to be compromised in any way.

But CJI Lodha will need to read this blog by his former brother judge in the Supreme Court, Markandey Katju’s blog, and figure out whether this independence was always intact.

Justice Katju, who is currently chairman of the Press Council, has levelled allegations that cannot but show the higher judiciary in poor light. The only interpretation one can give to his claims is that the CJI of 2004 was willing to bow to political pressure to keep the UPA in power, even going to the extent of allowing an allegedly corrupt judge to remain in office and ultimately even promoting him.

This is what Katju wrote about the antecedents of this judge of 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 Tamil Nadu, and during his career as District Judge there were as many as eight 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 eight 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.”

Justice Katju apparently asked the then CJI, RC Lahoti, to discontinue his services when his term expired, but suspects that this judge’s political connections helped him survive.

He says: “That Judge had the solid support of a very important political leader of Tamil Nadu. I was told that this was because while a District Judge he granted bail to that political leader.”

Justice Katju's blog is likely to create a storm because it raises questions about the independence and/or integrity of at least three former Supreme Court chief justices - CJI RC Lahoti, who okayed the extension to the additional judge in Tamil Nadu, who was said to be favoured by a key UPA ally from Tamil Nadu. This ally can only be the DMK, for in 2004 the DMK was part of UPA-1 and critical to its survival. November 2004 was when Katju became Chief Justice of the Madras High Court.

According to Justice Katju, CJI Lahoti, based on his recommendation (ie, Katju’s) had originally decided to discontinue the services of the corrupt additional judge, but the DMK apparently informed Prime Minister Manmohan Singh that if this happened the DMK would withdraw support and the government would fall. But what happens next is what makes one wonder how independent the judiciary really is.

Manmohan Singh began panicking but a Congress minister, according to Katju, assured him he would fix things and he apparently got CJI Lahoti to extend the tenure of the corrupt additional judge.

Then the story gets worse. While CJI Lahoti merely extended the corrupt additional judge's term by a year, his successor as CJI, YK Sabharwal, gave him a fresh term, and the man who succeeded him as CJI, KG Balakrishnan, made the judge's appointment permanent and moved him to another state.

So, in sum, going by Katju’s story, three CJIs were complicit in continuing, confirming and promoting an allegedly corrupt judge.

It is worth recalling that both ex-CJIs, Sabharwal and Balakrishnan, have faced adverse scrutiny after they laid down office.

According to allegations made in open court, former Law Minister Shanti Bhushan alleged that eight of 16 former CJIs were corrupt and he said he was willing to be in contempt of the court for this statement.

This is what legal portal Law Resource India had to say about this allegation: “After former Union Law Minister Shanti Bhushan alleged that eight of 16 former Chief Justices of India were corrupt, his advocate son, Prashant Bhushan, filed another affidavit in the Supreme Court listing alleged instances of corruption against six of them – Justice Ranganath Mishra, Justice KN Singh, Justice AM Ahmadi, Justice MM Punchi, Justice AS Anand and Justice YK Sabharwal.”

As for KG Balakrishnan, a former judge of the Kerala High Court, Justice PK Shamsuddin (1986-93), and a Gandhian and humanitarian who served with the former CJI, alleged that Balakrishnan must be probed because he (Shamsuddin) was once approached by a Bangalore-based person to act as an intermediary to a fix case in the Supreme Court.” (Read this Firstpost story on this case).

If Justice Katju is correct - there is no reason to suspect he has an axe to grind against three members of his own tribe who have long since retired - then it is clear that elements of the highest court are politically compromised.

This leads us to three conclusions:

One, the opaque collegium system of appointing judges to the Supreme Court and the higher courts is seriously flawed and must be reformed. As I have noted before, “judicial appointments are too important to be left to judicial whims or wayward government preferences. We clearly need a statutory Judicial Appointments Commission to be passed by parliament as soon as possible. A Bill to create one was approved by the UPA last December on the basis of a report of the Standing Committee on Law and Justice, which had made suggestions on how the JAC should be constituted. It called for the insertion of a new article 124A in the Constitution to define who will comprise the JAC, and a 124B to define its role and job.” Time to move ahead on this.

Two, politicians should not normally be in touch with the judiciary. If a Congress minister can easily get in touch with the CJI and get a judge's appointment extended or made permanent, it cannot do the judiciary's reputation for independence any good. Clearly, any meeting between members of the executive and the judiciary should happen only in broad daylight and the agenda must be clearly stated and recorded. Any unofficial contact between the two that goes beyond social occasions must be ipso facto deemed to be suspicious. This aspect needs to be part of a code of conduct for both the executive and the judiciary.

Three, the system is compromised because many judges are given sinecures after retirement. According to this Indian Express report of July 2012, “Of the 21 judges to have retired from the Supreme Court since January 2008, 18 got jobs in different government commissions and tribunals. In many cases, judges accepted post-retirement appointments much before they formally demitted office — at least three of them when they still had many months of service left….In many cases, the names were recommended by the Chief Justice himself.”

One can understand using the experience of judges for running quasi-judicial organizations, but if there is no cooling off period between retirement and new postings, what is the guarantee these judges will be truly independent? Won’t they be beholden to the government that gave them these sinecures?

Clearly, the independence of the high judiciary is now a matter of debate. It is time for major reforms.