Markandey Katju's whistle-blowing has bared all that is wrong with the collegium system of selecting judges, and how political pressure can be applied without anyone knowing about it.

When judges wash their dirty linen in public, the muck is sure to fly. Some of it will stick on the Supreme Court itself for it is now clear that the collegium system of appointing judges is not all that it is touted to be: always free and independent. We know that if enough political pressure is applied, the collegium can change its mind; and worse, the procedure followed by the collegium seems flexible.

Two days ago, retired Supreme Court Justice Markandey Katju let it all hang out by claiming that three former chief justices of India (CJIs) – RC Lahoti, YK Sabharwal and KG Balakrishnan – may have had a hand in confirming and then promoting a “corrupt” judge in Tamil Nadu. Worse, this was done on the basis of the political pressure exerted by the DMK, then a critical partner in shaky UPA-1.

Justice Katju followed up his allegations, made first on his blogsite Satyam Bruyat, by appearing on several TV channels yesterday (21 July) and expanding on his allegations. Two of the CJIs were forced to give their responses. While Lahoti had this saintly response (“I have never done anything wrong in my life"), Balakrishnan dumped Katju’s prose into the bin, calling it “silly”. “There has absolutely not been any political pressure of any kind during my tenure of three-and-a-half years as chief justice of India. So where is the question of compromise (of judicial independence)?” asked Balakrishnan, according to The Economic Times.

The good Katju is now back to his public laundering work, posing six questions intended to put Lahoti in a spot. More Satyam is brewing at Satyam Bruyat.

In the second (22 July) outpouring, Katju effectively leaves Lahoti with no escape route by asking him six questions intended to show that he knew about the Tamil Nadu judge’s corruption, and that he may have violated some of the collegium’s own norms by extending the tenure of the additional judge.

Katju’s six questions seek to strengthen his own side of the story. However, Katju’s queries have effectively been answered by former Law Minister HR Bhardwaj, who confirmed the details while giving his own spin to the story. He brought in a caste angle. In India, all arguments get confused once you bring in the caste angle. Caste is obviously above truth.

In admitting that he had asked CJI Lahoti to give the judge an extension, Bhardwaj effectively confirmed Katju’s claims – that the pressure came from the DMK, and that he was the minister influencing the Supreme Court. Bhardwaj said the DMK wanted the judge to get an extension because it felt the judge was from the scheduled caste and was being “discriminated against.”

But Bhardwaj’s most important statement was that the government can have a say in how judges are appointed. The Hindustan Times quoted him as saying: “Appointment of judges is not a family affair. I put it down in black and white by writing to Lahoti. The CJI conducted an inquiry and the Madras HC judge was only given an extension pending the inquiry. Katju did not want him to get an extension and he said that in writing to the CJI with a copy to me."

Two things are clear from this.

One, the claim that the Supreme Court collegium has the final say in the appointment of judges is a partial myth. This myth was trotted out when the NDA wanted to prevent Gopal Subramanium from being appointed as a Supreme Court judge, and the present Chief Justice huffed and puffed about its independence. But Bhardwaj’s statement effectively proves that the Supreme Court has accepted the government’s views when it is pressed. (Read more on this here)

Two, the collegium itself appears to be dominated by the CJI. If Justice Katju’s claims are correct, and if CJI Lahoti did not consult two of his collegium members (Justice YK Sabharwal and Justice Ruma Pal) while extending the tenure of the judge after the collegiums had earlier decided against it, it would mean the collegium is less collegial than the world presumes it to be. Clearly, the CJI can carry the day.

Something is rotten in the state of Denmark. Despite questions about Katju's timing, it is clear that he has done us all a service by his whistle-blowing. Time for the government and the judiciary to clean up their acts together.