Review: Whither Indian Judiciary by Justice Markandey Katju

Former Supreme Court Justice Katju is considered a wild card of the Indian judiciary. Notorious when he occupied the judicial office, and perhaps more so when he retired, his well-timed, often amusing tweets and blog posts have always caused a fervour -- both of disagreement and support. His new book Whither the Judiciary is no different.

Those associated with the judiciary in any form, especially lawyers, will tell tales of how they dreaded appearing before him. Regarded as a hard judge to pin down, he doesn’t shy away from speaking his mind, regardless of whether it matches the prevailing social wind. Beyond the temper and the sharp tongue, he is a shrewd man with an unfaltering belief in his sense of wrong and right, which is as clear-cut as a world that comprises no greys.

In Whither Indian Judiciary, Justice Katju has exceeded the usually acerbic attitude he reserves for the workings of the Third Pillar. This book has not been written by a man who has given up on our legal system but by one who fervently believes in the core principles of the Indian Constitution. Through it, he takes aim at the system and some bullets hit close to the mark given the recent impeachment petition against CJI Deepak Misra. But amusing stories and jokes are never far behind and are guaranteed to make the reader laugh out loud. It is true: Justice Markandey Katju might be the first person to make a book on the subject of law genuinely amusing.

He hasn’t set out to write a textbook on the law. Instead, he has gone into the everyday practicalities of the legal system, its hidden secrets, the sewage beneath the pristine surface, so to speak.

From how court clerks can fool judges into granting adjournments to his faux pas as a young judge of Allahabad High Court, Katju’s book will tickle you even as it educates you in the ways of the Constitution.

The first half focuses on Constitutional History -- how and from whom we got our rule of law and the various illogicalities that occur when regulations are adopted without regard for the intricacies of the society to which they will be applied. While those involved in the legal profession may skip this section, it does educate the ordinary citizen, who may not fully comprehend the history and thought that went into our rules of law. Katju does an excellent job of explaining our Constitution and the importance of the rule of law in any democracy, but it is in the later pages that the book sizzles.

SUPREME COURT AND SUCCESSION OF JUDGES

Part II of Whither The Judiciary focuses on the appointment of judges. Justice Katju is a sharp person. So it’s hard not to see parallels with the news in the first chapter, which attacks “the convention.... to appoint the senior most Judge as the Chief Justice.” The rule, Justice Katju writes, “often leads to undesirable results.”

Never one to point out a problem without offering a solution, his rather tongue-in-cheek alternative is to “supersede” a judge next in line for Chief Justice SC if he’s found to be “a person of integrity, but maybe a mediocre person.”

Pointing out that the Constitution itself does not provide for the convention of passing CJI-ship to the next senior-most judge, Justice Katju states that, “there are many excellent Chief Justices of High Courts that could be appointed directly as CJIs as they deserved the esteemed office.”

This portion also gives a concise factual account of the formation of the Collegium through the Second and Third Judges cases. It points out that “a convention is not a statutory rule and when experience shows it has been having a deleterious effect, it should be given up and a new methodology adopted.”

CONTEMPT OF COURT AND MEDIA GAGS

Though he has never been a fan of the Contempt of Court Act, this is the first book in which Justice Katju lays down the full extent of his scorn for the statute.

He points out that the statute cannot override the Indian people’s fundamental right to expression, even if it is the criticism of the judiciary. Using Jeremy Bentham’s analogy of a “Dog Law”, Justice Katju points out, as many have, that Contempt Law has “no rules, no constraints -- no precise circumstances when the administration of justice is brought into contempt.”

He does, however, offer an example of when there may genuinely be contempt to court: “If someone jumps up on the dais of a court and runs away with the court file or keeps shouting and screaming in court or threatens a party or witness.” These are the only circumstances that Justice Katju believes he would impose contempt. He follows these scenarios with a practical “After all I have to function if I wish to justify my salary.”

AMUSING STORY

Much of the book is a regurgitation of Justice Katju’s well-known judgements. Several articles and op-eds that favour him appear in the manuscript as well. These are excellent opportunities to go through the life’s work of a man who -- whether the reader agrees or not -- believed himself to be upholding justice.

The stories form the best part of the book and include rumours and a few tales unheard even by those in legal circles!

One such story encapsulates the Judiciary and its lofty sense of itself like no other:

Read more: I was on verge of being sacked, says former SC judge Markandey Katju

A lawyer had two matters simultaneously come up before the Patna High Court and the Allahabad High Court. The former was a more important case, but the judge in the latter court was infamous for not granting adjournments. The worried lawyer approached the court clerk, who told him not to fret. The clerk appeared at the judge’s home the very next morning to inform him that his name, Justice Mushtaq Ahmed, had been misprinted on the cause list as Justice Mushtaq Ahmaq. The difference of alphabet meant the name of the judge had been misprinted to spell ‘fool’. So incensed was the judge that he did not go to court and all cases of the day were adjourned.

Justice Katju reveals the innards of the Indian legal system; the ego, and the ridiculousness that hides behind dark robes and contempt statutes. This book discloses how our legal system runs; an open secret that judges don’t want anyone to know.