Katju must reveal more to carry conviction

B.R.P. Bhaskar
IANS
 

Press Council of India chairperson and former Supreme Court judge Markandey Katju has alleged that one of his brother-judges in the Madras High Court was corrupt and that the patronage of a party belonging to the United Progressive Alliance (UPA) coalition and "improper compromises" by three successive chief justices of India helped him to keep the job.

He did not name the judge, the party or the senior Congress minister of the UPA government who is said to have managed that party's threat to bring down the government. But he mentioned enough for inquisitive people to ascertain their identities or at least make informed guesses.

The media revealed that the judge in question was S. Ashok Kumar, who died in 2009. He was appointed additional judge of the high court in April 2003 after he had served as district judge for 15 years. At that time, the National Democratic Alliance (NDA) was in power in New Delhi and the DMK was a partner in the government. Before joining the state judicial service, Ashok Kumar was active in politics and contested assembly elections twice as a Janata Party candidate.

The DMK's interest in him was attributed to his granting bail to its chief M. Karunanidhi after he was arrested in 2001 in connection with a corruption case. The arrest at an unearthly hour smacked of vindictiveness. "Is your heart made of muscle or mud?" Ashok Kumar asked the police when the former chief minister was produced before him. "What was the pressure on you to arrest a 78-year-old man suffering from various ailments?"

The Hindu reported at that time that Ashok Kumar's sharp question had caught the public imagination as an all-encompassing rebuke to the police who showed scant regard for the law in their everyday functioning and had made him the man of the moment in Tamil Nadu.

While dealing with the case against Karunanidhi, he reportedly received threatening calls and his car was hit by a van belonging to the Jaya TV channel. NDA Convener George Fernandes appealed to the authorities to provide him adequate security.

While practising as a lawyer, Ashok Kumar had successfully campaigned for the setting up of a commission of inquiry into the rape of 17 Dalit women in a village in his native district Thirunelveli. Yahoo! listed him among Dalits and Adivasis who had risen to high positions.

From these facts it emerges that Ashok Kumar belonged to the non-Dravidian political stream and had raised the hackles of casteist elements before his appointment as district judge but was drawn into the feud between the Dravidian parties after he granted bail to Karunanidhi, whom Chief Minister J. Jayalalithaa's police was perceived to have arrested in a high-handed manner.

This background is missing from the accounts of Katju, who is economical with facts and repeatedly refers to Ashok Kumar, with uncharacteristic judicial impropriety, as a "corrupt judge".

Katju's account of the Ashok Kumar affair appeared under the heading 'How a corrupt judge continued in the Madras High Court' in his blog, which is grandiloquently titled "Satyam Bruat". It appeared simultaneously in The Times of India. The newspaper used it not as an article but as a news story, which was presumably a privilege extended to Katju by virtue of his status as Press Council chief.

It was the second piece on his experiences as chief justice of the Madras High Court during 2004-05. In the first one he had revealed that when he assumed office he took an oath to himself that he would do his duty to the Madras High Court even if it meant losing the opportunity to become a Supreme Court judge.

According to Katju, there were several allegations of corruption against Ashok Kumar. When he was district judge, high court judges had recorded eight adverse entries against him but an acting chief justice, by a single stroke of the pen, deleted all of them. Since he was getting many reports against Ashok Kumar's corruption, he requested Chief Justice R.C. Lahoti to ask the Intelligence Bureau to make a secret inquiry. Lahoti told him later the complaint had been found to be true. He, therefore, assumed that Ashok Kumar's services would be discontinued on the expiry of his two-year term but he got a year's extension.

The rest of the Katju narrative is hearsay. He learnt that the Supreme Court collegium had recommended that Ashok Kumar's services be discontinued but DMK MPs met Prime Minister Manmohan Singh at the airport before he left for the UN General Assembly session and threatened to withdraw support to the UPA government if his services were not continued. Manmohan Singh panicked but a senior Congress minister offered to sort things out. After this minister met Lahoti, he wrote to the government to give Ashok Kumar an extension.

Still later Chief Justice Y.K. Sabharwal gave Ashok Kumar a further extension and Chief Justice K.G. Balakrishnan confirmed him as a permanent judge and simultaneously transferred him to another high court.

Katju said in conclusion: "I have related all this to show how the system actually works, whatever it is in theory."

The day after the post appeared, Katju placed himself at the disposal of the channels to answer questions. But when a NDTV anchor asked why he had chosen to make the revelation a decade after he left the high court, he walked out of the studio. However, he explained in his blog that he remembered the Ashok Kumar affair when he started writing about his Chennai days at the request of some Tamils on Facebook.

Following up on the Katju story, The Times of India published a facsimile of the letter Lahoti had written to the government agreeing to extend Ashok Kumar's services as additional judge "in view of the sensitivity in the perception of the government". It is dated July 18, 2005. Manmohan Singh left for the UN session only in the second week of September. The airport drama in Katju's account must therefore be a figment of someone's imagination.

Since the major dramatis personae have confirmed that there were differences between the judiciary and the executive on Ashok Kumar's appointment, there is no need to quibble over minor departures from the facts. Such differences are a necessary part of the consultation process. The pressure the DMK exerted to get a favourable decision is not something unusual or unheard of in the working of coalitions.

Katju cannot be faulted for being highly critical of the DMK. In the very first piece on his Chennai experiences he has mentioned that the state's AIADMK chief minister never interfered in the judicial process or pressured him to recommend any name for judgeship but the DMK, which was part of the coalition ruling India, had put tremendous pressure on him to recommend the names of some whom he found to be totally undeserving.

After the Katju bombshell and the discussion that followed, the question whether Ashok Kumar was a corrupt judge, as he has alleged, still begs for an answer. That the DMK, which had batted for some undeserving candidates for judgeship, favoured his appointment as permanent judge is not sufficient ground to conclude that he was corrupt. Katju has not provided any information on Ashok Kumar's alleged deeds of corruption or the nature of the adverse entries against him. He must be aware of the adverse entries which his predecessor deleted since they are on files to which he had access. Since he has provided no specifics, the public has before it no material on the basis of which it can decide whether Lahoti and his two successors made "improper compromises", as he has alleged.

According to a newspaper, the adverse references in the IB report "apparently dealt with 2002 and 2003 when Kumar was a district judge in Krishnagiri, in Tamil Nadu, but not very far from Karnataka, and he used to spend weekends in Bangalore". The IB's dubious role in cases like the ISRO spy case of Kerala, which the Supreme Court found to be baseless, and the Gujarat fake encounter cases, which are still under judicial scrutiny, raises the question how much reliance can be placed on its report relating to a person who has displeased men in uniform. Assuming that its report was unbiased, we still have to ask ourselves if spending weekends in Bangalore is sufficient ground to dub a judge corrupt.

As the BJP and the AIADMK on the one side the Congress and the DMK on the other vied with each other to exploit Katju's revelations politically, eminent lawyer Ram Jethmalani observed that he should have spoken at the right time. Some said he should have shown the courage to resign on this issue.

What would have happened if Katju had resigned on this issue? In all probability, the politicians would still have persisted with partisan battles and the CJIs would still have made improper compromises and he would have missed his promotion to the Supreme Court.

Katju must come up with more facts to carry conviction. If he doesn't, one will be constrained to conclude that he unwittingly became involved in the Dravidian parties' feud in which Ashok Kumar had got caught and that he too was willing to make an improper compromise.

Quality of mercy is strained

BRP Bhaskar
Gulf Today
Political and communal passions often run high in India. Since some parties draw sustenance from communal ideologies it is not always easy to distinguish between political sentiments and communal feelings. Their combined impact is straining the quality of mercy.

The constitution vests in the president and the governors of states the power to grant pardon or commute the sentence of a person convicted of any offence. The provision is in accord with the universally recognised principle of executive clemency, which allows justice to be tempered with mercy.

In the 1960s, in a celebrated case, the Governor of Maharashtra pardoned a navy commander, KM Nanavati, who was sentenced to life for killing his wife’s lover, after he had spent only three years in jail. He was a highly decorated officer and a campaign by a popular tabloid which played up the murder as a crime of passion earned him the sympathy of the middle class.

Nanavati was a Parsi and the deceased a Sindhi, and organisations of the two communities openly took sides. In the event, the government acted only after the deceased’s family stated in writing that it had forgiven Nanavati. It also granted pardon, along with Nanavati, to a Sindhi freedom fighter who had been convicted in another case.

Since then, the Supreme Court has laid down guidelines with regard to grant of pardon. In 1980, a constitution bench ruled that the president and the governors cannot exercise the right of pardon arbitrarily. Also, since they act on the advice of the council of ministers, grant of pardon was an executive action and, therefore, subject to judicial review.

In the USA, the highest court has drawn a distinction between judicial power and executive power. “Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or the enforcement of the criminal law,” Chief Justice William Taft said in a judgement. “The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.”

The thought that courts are not infallible is hard to come by in Indian judicial pronouncements. As things now stand, the last word on grant of pardon rests with the judiciary. The courts can upset the decision of the president or the governor on such grounds as acting without the advice of the council of ministers or on extraneous considerations, transgressing jurisdiction and lack of application of mind.

While the executive and the judiciary are sworn to act without fear or favour, it is unreasonable to expect them to immunise themselves totally against the pressure of public opinion, informed or otherwise. In awarding Afzal Guru the death sentence in the parliament attack case, the apex court had said in so many words that this was necessary to satisfy the collective conscience of the society in an incident which had shaken the entire nation.

The event certainly had shaken the nation but what the capital punishment, which the government carried out secretly in February, satisfied was not the society’s desire for justice but the revanchist sentiments of political elements with a communal agenda wrapped in pseudo-nationalism. They were back in action last week after Press Council of India Chairman Markandey Katju, who is a former Supreme Court judge, called for grant of pardon to Bollywood star Sanjay Dutt, whom the apex court gave a five-year jail term under the Arms Act.

The case against Dutt arose out of his contacts with some of those involved in the Mumbai serial blasts of 1993 in which more than 250 persons were killed. Katju asked that Dutt be pardoned considering his contribution as an actor and his charitable work, factors which modern states generally take into account in deciding such matters. He also pointed out that Dutt had expressed remorse and suffered enough during the past two decades.

Dutt was in prison for a year and a half in the preliminary stages of the case and has to spend three-and-a-half years more in jail in terms of the apex court verdict. Sensing that public opinion in his case is divided, he said he would go to prison and not seek pardon.

The real issue is not the fate of an individual who committed a breach of the law but that of the society which appears to be at the mercy of atavist elements which will not allow justice to be tempered with mercy.-- Gulf Today, Sharjah, April 2, 2013.

Media under scrutiny

BRP Bhaskar
Gulf Today

Markandey Katju, Chairman of the Press Council of India, which looks into complaints against newspapers and news agencies, has raised a hornet’s nest by stating some home truths.

Under the law only a former Supreme Court judge can head the Press Council. Katju, who has a reputation for outspokenness, retired from the apex court in September, and took over as its chairman last month. The jurisdiction of the council, first established in 1966, does not extend to private television, which made its appearance only two decades ago. Channel bosses were infuriated by Justice Katju’s suggestion that the watchdog body must be turned into a Media Council and the electronic media brought under its ambit.

He made the suggestion in a letter to the Prime Minister in which he also called for amendment of the law to give the Press Council power to punish erring mediapersons and institutions. All it can do is to admonish and censure the wrongdoer.

At one time the Press Council used to ask newspapers to publish its findings against them prominently, and they complied. Lately they have flouted such directives. In the circumstances, the suggestion to enlarge the Council’s powers is quite justified.

Some time ago, alarmed by reports that the government was thinking of a regulatory authority for the electronic media, channel owners and news television bosses declared they would enforce self-regulation. They then established a body styled as the News Broadcasting Standards Authority, with JS Verma, a former Chief Justice of the Supreme Court, as chairman and another named Indian Broadcasting Federation with AP Shah, a former Chief Justice of the Delhi High Court, as chairman.

The NBSA, after looking into complaints against a channel which had aired a report about gays, held that it had invaded the privacy of individuals and imposed a fine of Rs 100,000. This is the only known instance of purposeful intervention by that body to enforce standards.

Justice Katju said in a series of interviews that he had a poor opinion of the media, that a majority of mediapersons were of low intellectual calibre and that they were working not in the interests of the people but in an anti-people manner. Those were indeed harsh words, and predictably there was a loud uproar.

News channels took up Justice Katju’s statements for discussion at prime time, and he came under a barrage of criticism along with channel bosses, the Indian Newspapers Society, an organisation of newspaper owners, and some journalists’ bodies also took up cudgels against him.

At the first meeting of the Press Council with Justice Katju in the chair, the INS representatives demanded an apology from him for his remarks against the media. When he refused, they walked out.

Unruffled, Justice Katju reiterated his views. He dismissed self-regulation as an oxymoron, and said, “Everybody is accountable to the people in a democracy, and so is the media.” If they did not want to come under the Press Council, would they like to be under the proposed Lokpal, he asked.

He said the media, instead of addressing the problems of 80 per cent of the people such as dire poverty, massive unemployment, skyrocketing prices, lack of medical care and educational facilities and barbaric social problems like honour killing, dowry death, caste oppression and religious bigotry, devoted 90 per cent of the coverage to entertainment such as lives of film stars, fashion parades, pop music, disco dance and cricket and superstitions like astrology.

Elaborating his point about the media’s anti-people attitude, he mentioned how whenever there was a bomb blast the channels started talking of an email or SMS from an organisation with a Muslim name owning responsibility for it. Any mischievous person can send an email or SMS, he pointed out. By playing up such messages the media demonised a whole community.

Justice Katju said the European media had played a positive role during the transition from feudalism to a modern society. India was now going through a similar transition and he wanted the Indian media to play its part in that process.

It is worth noting that those who have joined the chorus against Justice Katju were more or less silent when issues like paid news and the Radia tapes rocked the media. A Press Council inquiry committee had found that several newspapers had taken cash from political leaders for coverage at election time. The telephone conversations of corporate lobbyist Niira Radia secretly recorded by an official agency had revealed the nexus between politicians and mediapersons.-- Gulf Today, Sharjah, November 21, 2011.