Whither Indian Judiciary by Markandey Katju (Bloomsbury Publishing India Pvt. Ltd, 2018)

Kant Kumar reviews this book on the Indian Judiciary.

  • Whither Indian Judiciary by Markandey Katju

Justice Katju belongs to a family, whose most of the members are either Judge or lawyer. He started his law practice as a lawyer in 1970. He raised up to the rank of Chief Justice of High Courts and finally a Judge in Supreme Court in 2006. He retired from his post in 2011. "Whither Indian Judiciary” is one of the master piece of justice Markandey Katju. This book gives details of Justice Katju’s first hand experiences of court room, hotly debated issues faced by judiciary and politics played in the appointment of judges. This book also gives de-tails about the history, work culture and real functioning environment of court system of democratic India. In the Preface, Justice Markandey Katju has started the book by mention-ing former Chief Justice T.S. Thakur’s lamenting speech of 2016 joint conference of Chief Minister and Chief justices of High Courts in which Justice Thakur pointed out the avalanche of litigations, and the resources not enough in court to handle the almost three crore pending cases at various levels of courts. While pointing out the practical issues of court and hidden secrets, he has been very witty and conscious, and many times has tried to hide the sewage beneath the pristine face of judiciary so people don’t lose faith in judiciary.

Since, Justice Katju is known for speaking his mind, many of his judgements are proof of his thinking out of the box for better judgement and better society. This book is compilation of all those facts. The first section of the book deals with jurisprudence and set up of judicial system. This section mainly gives details about the history of judicial organisation and consti-tutional system. The author reaffirms and gives many insights proving that India’s constitu-tion is modelled on the west, its parliamentary form and independent judiciary are modelled on British, the fundamental rights and federal structure form has been incorporated form the US constitution and directive principles has been taken from the Irish Constitution. In Eng-land, France, Ireland and US, these institutions and principles grew together with the ad-vancement of society and came after long historical struggles of those people. He further says, “The basic principles and State institutions set up in our Constitution were not our own creation”. He says that modern model and principle has been transplanted from the above on our backward Indian society. In this book, Justice Katju has been a bit witty and conscious, critical of western model of Indian constitution and has termed India as a backward society on which modern constitutional principle are forcefully imposed. In Chapter three, he has mentioned about the indigenous “Mimansa Principle” of interpretation in a law court. Since, he claims that he delivered some judgment using this principle, in this chapter he fails to elu-cidate the theory and what Mimansa Principle is?

Through out this book he has shared his first hand experiences of the court system and judici-ary, he has tried his best to know and let people know the burning question ‘Whither is Indian Judiciary?’, by explaining the legal theories and principles, appointment mechanism of judges in court, pendency of cases in court etc. Author gives his first hand experience and says that some of judges don’t have integrity and they indulge in illegal activities. He also mentions that a few times he was forced by political leaders for the selection of judges of their choice. Justice Katju talks about the democratic rule of law but he fails here to correlate the rule of law theory and its relation to timely judgment delivery. he fails to say in which direction In-dian judiciary is headed and what would be social impact due to late judgment, what is rank-ing of India among the rule of law nations. Author also does not explain, which method should be adopted for raising the number of judges and timely judgment delivery, if there are lack of judges and piles of pending cases, then how will a rule of law society be formed and justice will be delivered even to the lower sections of the society? He has also failed to give details, what type of trauma people suffer when their case gets struck in a decade long wait-ing queue. Very aptly and satirically he mentions that ours is a modern constitution and it has been implanted from above on the backward Indian society in early 1950s. After reading the above line it can be understood that he is also not very fond of the western principles.

Through this book the author has raised several issues and has quoted China to put weight in the merit of his arguments. Justice Katju says that China is larger than India, both in popula-tion and in land area and talks about China’s homogeneity in its society but he fails to give the details of China court system and numbers of judges employed for the smoothly function-ing of china’s homogeneous society. Since in some judgements Author had quoted china, So some facts about the China’s legal theory and human resources in the court room should be put for the better comparison, which will help to assess what and where are judiciary? In early 1950s, two populous backward countries – India and China - adopted respective constitu-tions, India adopted the western model and China adopted a Soviet model. India still uses the same model and some of the laws date back to pre-independence and struggles with piles of cases at each and every level of courts. All over 19279 (as on 05/04/2019) judges are work-ing to handle about three crore pending cases and delivering justice after a waiting period of decades. China, the other backward country several decades ago, in the meanwhile, reviewed its constitution and has rewritten, amended several laws as society has progressed. With ad-vancement of its society it came with new principles and definitions of legal theories. In early 1950s, China adopted socialist legal system which gradually transformed into ‘rule by law’ in the 1980s followed by ‘socialist rule of law’ in 1999 and finally ‘rule of law with Chinese characteristics’. During 19th People Congress of Communist Party of China (2017) there were total 211990 (two lakhs eleven thousands nine hundred ninety) judges in the country for delivering judgements. India had hardly 18000 judges all over India in 2017. Several times it has been mentioned that India is a “Rule of Law” country. If justice will not be delivered on time, then how it fulfils the criteria for being a rule of law country? In this book, Author asks the question, Whither is Indian Judiciary? But he fails to answer the real position of Indian Judiciary.

Since judiciary is third pillar of democracy, the strengthening of judiciary is one of the core requirements for safeguarding the constitution on which democracy is built. In this book, the author has criticised government approach towards the judiciary and also the collegium mechanism and its true functional mechanism which has led to pendency of cases at every level of courts. He has also opined the collegium as a failed institution. Author has also very aptly put his view about the legal suit ‘contempt of court’ without coming under the axe of contempt of court law. he has suggested that this suit (Act) should be restricted only for the smoothening of the proceeding of cases. The contempt clause put judges above the law. Jus-tice Katju quotes Justice Iyer, “Truth is not a defence in contempt cases. A person may have evidence that a judge took bribes. Even if that is proven in court, he or she would still be held guilty of criminal contempt”. The above statement is enough proof for establishing the truth, “The contempt clause put judges above the law”. In a republic, such type of suit will do more harm than benefit. Justice Katju further emphasises, “such a law should have no place” in a country. For a better understanding of the matter Justice Katju has come with a chapter “Shoving Judicial Corruption Under the Carpet”. In this section author has blatantly criticised people who are not in favour of disclosing the corruption in judiciary. he has written on prac-tical issues of the court which give ample proof that there are some issues which must be sort-ed out before going out of hand for the betterment of court system. Since, Justice Katju be-lieves in the core of Indian constitution, so he is a vocal critic regarding shortage of judges in the court and unlike most of the political leaders and his predecessor, he does not want to left the issue under ‘Ram Bharose’!

Section two of this book has been titled as “The Appointment of Judges”. By name it seems that there would be whole process of appointment of judges. Since author has started the book by mentioning T.S. Thakur, whose audacious approach to reach people and expose polit-ical apathy towards judiciary is ‘Kabile Tarif’. Author has given a very heavy title “The Ap-pointment of Judges”, but this chapter lacks even a single formal process followed for the ap-pointment of judges. In this section Justice Katju has only elaborated how he had selected some senior lawyers from the help of his fellow colleagues and after assessing his knowledge of law during the court proceedings. The other example he has put forward, ‘he did not select a Schedule Caste person as a judge, referred by a political leader because he came to know by fellow colleagues that he is not a man of integrity’. In the Chapter he has not mentioned the formal process of appointment in court. If the author would have elaborated the process of appointment of judges at all levels of courts then his question about lack of judges in court would have been answered, but he fails to do the same.

Last Chapter of this book is detail and judgment of Naresh Chand vs DOIS,1992 case and it is also about uproar for delivering a judgement regarding appointment of a High School teacher of OBC category in place of SC category candidate. This judgment brought uproar in India because Justice Katju had not taken into consideration the reservation criteria in ap-pointing a science teacher in High School. Above mentioned judgment was a high court or-der. In India most of the lower courts and high courts follow the judgment of higher court as a benchmark for delivering the next judgment. It is well known fact that higher court judge-ment becomes a law in itself and is generally referred for delivering the next judgment in court. For the betterment and amelioration of old and outdated laws, our constitution gives rights to interpret the law according to the current scenario and circumstances which later be-comes law. Since these interpretations are not a part and parcel of our constitution but they are considered as a benchmark for reference in the next cases. Most of these cases and judgement never come in the formal legal recording and it creates a chaotic environment while proceeding of arguments in a litigation. Since in Naresh Chand vs DIOS case, Justice Katju had not taken the reservation criteria and had tried to alter the constitution through his judgement which would have become a reference benchmark for the next similar cases.

In most part of this book Justice Markandey Katju has tried to raise some burning issues faced by Indian judiciary in hope for reform and betterment of judicial infrastructure. But in this book he has not given the detailed answers, “whither is Indian Judiciary?”.

KANT KUMAR is a 1st year Ph.D. student at JNU, New Delhi and can be reached at