Recently, on 17 October 2016, the Supreme Court issued a notice to Justice Markandey Katju, a retired Supreme Court judge, requesting him to appear before it in person on 11 November 2016 in connection with the proceedings to decide whether the Supreme Court judgment dated 15 September in Soumya rape and murder case [Criminal Appeal Nos. 1584-85 of 2014] suffers from any fundamental flaws requiring exercise of review jurisdiction. This notice was issued by the Supreme Court by taking a suo-motu notice of a Facebook post written by Justice Katju in which he had criticized the judgment of the SC in the said Soumya case.
The action of the SC in “requesting” a former judge of the same court to remain present in person and take part in its proceedings is unprecedented. Also, in particular, given that Justice Katju is well known for making all sorts of controversial remarks (including against the sitting judges of the Supreme Court), it is surprising that the Supreme Court found it fit to invite him to address the court (this issue is covered in the later part of this article).
It is pertinent to point out that clause (7) of Article 124 of the Constitution places a complete prohibition on a retired judge of the Supreme Court for pleading or acting in any court or before any authority within the territory of India:
“(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.”
The question is whether Justice Katju is thus prohibited under the Constitution for appearing in the Supreme Court to assist the court in proceedings of a case. Interestingly, Justice Katju has himself doubted whether he is permitted under the Constitution to appear in a court, by stating the following in a Facebook post:
“… I would be delighted to appear and discuss the matter in open court, but would only like the judges to consider whether, being a former Supreme Court judge I am debarred from appearing by Article 124(7) of the Constitution. If the judges hold that it does not debar me, I would be happy to appear and place my views.”
I may submit that usually, the words “plead or act”, as used in Article 124(7), are used in the context of advocates. When used in conjunction with the words “in any court or before any authority”, as in Article 124(7), these words do not leave any doubt about the said context.
In the case of Lily Isabel Thomas, Re v., (1964) 6 SCR 229 : AIR 1964 SC 855 : (1964) 1 Cri LJ 724, a Constitution bench of the Supreme Court had agreed that the “right to practise” would include not merely the right to “plead”, but also the right to “act”. It may be pertinent to point out that at the time when the Constitution was drafted [including Article 124(7)], there were generally a few types of lawyers, such as: (1) Barrister-Advocates who were not entitled to act, and used to plead only; (2) Attorneys who only used to act (generally, on the original side of the high courts), and (3) Non-Barrister Advocates who used to both act and plead. This finds support from the decision of a Constitution bench of the Supreme Court in the case of Pabitra Kumar Banerji v. State of W.B., (1964) 5 SCR 45 : AIR 1964 SC 593. After the Advocates Act came into existence in 1961, the term “Advocate” came to be universally recognized as the person who was entitled to “practise”, that is, to plead and act (see, section 30 thereof).
Thus, it should be clear that the words “plead or act” used in Article 124(7) of the Constitution should have reference to the context of an advocate who pleads or acts in a court.
In that context, the word “plead” would generally imply appearing in court and arguing on behalf of another person. In the same context, the word “act” would generally mean filing a Vakalatnama (and also a memorandum of appearance, wherever separately prescribed) on behalf of a party for the purposes of filing any pleadings or applications / petitions in any Court or Tribunal in India, or any act (other than pleading) required or authorised by law to be done by a party in such Court or Tribunal either in person or by his recognised agent or by an advocate or attorney on his behalf.
Now, Justice Katju would be required to appear and argue (or make presentation) in the court in a case that is not his own case. He would be appearing in a case in which he has no personal stake and he would not be appearing in person for his personal case. He would be appearing and arguing a matter, much in the same way as an advocate would do, though he would be doing so pro bono (i.e., without charging a professional fee). But, appearing pro bono in a case does not take away the character of appearing in a capacity that is similar to the capacity in which an advocate appears in court.
At this juncture, it is pertinent to note that Section 32 of the Advocates Act, 1961, allows a court to permit any person, other than an advocate, to appear before it in any particular case:
“32. Power of court to permit appearances in particular cases.—Notwithstanding anything contained in this Chapter, any court, authority or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.”
However, the main question here is of the prohibition placed in Article 124(7) of the Constitution on a former judge of the Supreme Court to “plead or act” in any court. There should be no doubt that a restriction placed in the Constitution cannot be superseded or overridden by an ordinary law such as the Advocates Act.
Therefore, once it is clear that what Justice Katju would be doing by appearing in the court and arguing in a case, would be to “plead” which would be performing a role similar to that of an advocate, even if pro bono, the bar in the Article 124(7) would come into play and Justice Katju is not permitted to do so.
An argument can be made that the Supreme Court has the power under Article 142 of the Constitution to “make such order as is necessary for doing complete justice in any cause or matter pending before it”. However, I am of the considered opinion that Article 142 cannot override a specific prohibition contained in the Constitution itself [such as in Article 124(7)]. In any case, the principle of harmonious construction would require that the power under Article 142 needs to be curtailed to the extent it is in violation of the prohibition contained in Article 124(7) of the Constitution.
Therefore, it would be interesting to see how can the Supreme Court permit Justice Katju to appear and argue in a case pending before it, in violation of the prohibition contained in the Constitution.
As an aside, let me also discuss another related issue. Frankly speaking, with due respect, it appears that the Supreme Court has dignified and honoured Justice Katju’s Facebook post, knowing fully well the type of controversial remarks that are made by him day in and day out. He does not spare anyone. If his remarks are on merits of the issues concerned, one would have in fact appreciated the same even if they were controversial remarks. The problem is that he makes all sorts of silly and illogical remarks without sufficient reasoning. He has invited criminal complaints against himself due to such controversial remarks. Just yesterday, an Allahabad court issued notice to him in a criminal complaint. Few days back, a sedition case was booked against him for his remarks against Bihar. He has made derogatory remarks against Mahatma Gandhi, Netaji Subhash Chandra Bose, Rabindranath Tagore. He makes derogatory remarks against religions, castes, groups of people, states, etc. In fact, his controversial remarks can be on any topic under the sun. Even the Supreme Court judges are not spared. Recently, in a Facebook post, Justice Katju wrote:
“…the vast majority of the present Supreme Court Judges are people of very low intellectual level. … … The present Chief Justice of India, Justice Thakur, in the BCCI case chose to ignore binding precedents that there is broad separation of powers in the Indian Constitution, and it is for the legislature, not the judiciary, to legislate. By acting thus he displayed total lack of judicial discipline, seeking only popular adulation, and throwing the Constitution and the law to the winds. The number 2 in seniority, Justice Anil Dave openly said that the Bhagavad Gita should be made compulsory in all schools in India, thus violating his oath to uphold the secular Constitution. Justice Gogoi, who is in line to become the Chief Justice of India on the basis of seniority, has shown that he does not know an elementary principle of law, namely that hearsay evidence is not admissible ( see paragraph 16 of his judgment in the Soumya murder case ). I can go on and on about most of the present Supreme Court judges to show how low is their intellectual level, but that is not necessary. Suffice it to say that they have reached their positions not because of merit but only by dint of seniority. Justice Deepak Mishra, in line to become CJI, was appointed a Judge in Orissa High Court at a very young age because of the influence of his relative Justice Ranganath Mishra, former CJI, who was one of the most corrupt judges in India. Justice Ramanna, who is also in line to become CJI, was appointed as a High Court Judge in Andhra Pradesh at a very young age due to his political connections, and later became Supreme Court Judge not because of merit but purely due to seniority.”
This is not the only occasion when Justice Katju criticized judges by calling them names. In another Facebook post, he wrote this about the Chief Justice of India Shri Thakur:
“…By his gross judicial misconduct and his evidently closed mind it is obvious that Justice Thakur has disqualified himself from hearing the review petition of BCCI. By ignoring binding precedents ( many of which are mentioned in my report stating that judges cannot legislate ) he has shown utter lack of judicial discipline and the self restraint expected of a judge of a superior court. …”
And, there are many more such posts.
It is generally said that you can criticize a judgment on merits, but you cannot criticize the judge as a person or attribute motives to him without inviting contempt of court. But, of course, this rule will not apply to Justice Katju since he is an Hon’ble retired judge of the Supreme Court with freedom to say anything on any issue. This rule applies only to lesser mortals like us, the common people.
Agreed that the Supreme Court would not issue notice to Justice Katju for contempt of court for obvious reasons. But, why honour him and dignify his writings? Even if in this particular instance (i.e., in Soumya case), his criticism of the SC judgment may be correct. Why invite him to address the court? There are so many scholars who write so many good articles in media which may also be sometimes in the form of critique of various judgments. How many of such scholars have been invited till date by the Supreme Court to address it on its defective judgments or on other issues? Why reward Justice Katju and honour him in such manner?
It is not to suggest that the judiciary is perfect and does not have any lacunae. The judiciary is also a part and parcel of the same corrupt system that we have in India. It has the same type of weaknesses in varying degrees. But, then, Justice Katju has not been above such weaknesses. In fact, one always wonders how a person like Justice Katju came to be appointed first as a high court judge and then as a Supreme Court judge. If there is one living proof of the defective system of selecting judges for the higher judiciary, then it is Justice Katju. If a person like him could have been appointed as a judge in the Supreme Court, then there must be some serious issues with the selection process for appointing such judges. I have read a large number of his judgments for the purposes of my books and for other work. Frankly speaking, with great respect, I do not find those judgments to be of any exceptionally inspiring character, barring a few. A judgment does not become good merely by quoting Ghalib or Shakespeare in it. You need correct interpretation of law and facts. You have to apply the correct legal principles. In my published work, I have criticized his judgments on merits, on more than one occasion (and that too, when he was a sitting judge). Of course, to be fair, I must concede that if one were to prepare a list of honest judges in Supreme Court, the name of Justice Katju would be at a very good position from the top. But, the quality of his judicial work and his abusive and super-authoritative behaviour inside court room could not have been classified as an example of an outstanding judge. Many of his orders were like firmans (or royal mandates or royal decrees) of the Kings of olden days.
Given this background, it appears surprising to me that the Supreme Court has given so much importance to Justice Katju by “requesting” him to remain present in the court and present his arguments in the Soumya case to point out defects in the SC judgment in that case, even though the Constitution does not appear to permit it.