The line between a whistle-blower and a motivated accuser can be very thin, and too often those making controversial disclosures face troubling questions over their motive and timing. Former Supreme Court judge and Press Council of India Chairman Markandey Katju’s startling disclosure that an additional judge of the Madras High Court was improperly given repeated extensions of tenure, and finally made a permanent judge in 2007, despite adverse reports about his integrity, has caused understandable disquiet in legal, judicial and political circles. The Law Minister of the day and the then Chief Justice of India who confirmed in 2007 the appointment of Justice S. Ashok Kumar, have denied any wrongdoing. Some have questioned the timing of Mr. Katju’s revelation, almost a decade after the developments. Whatever is made of his motive or timing, it cannot be gainsaid that Mr. Katju has shone considerable light on a troubling feature of what is on paper an appointments system that gives primacy to the opinion of the Chief Justice of India and the collegium of judges: that the considered decision of the collegium can be undermined by political influence. However, he can legitimately be asked to explain the delay in making his disclosure, and his silence and acquiescence while he was Chief Justice of the Madras High Court and later when he was a Supreme Court judge. A 2008 Supreme Court judgment, while refusing to interfere with Justice Ashok Kumar’s appointment, had pointedly noted that “successive Chief Justices” had recommended that he be made a permanent judge.
The heart of the matter is the concern that the present system of appointing judges does little to ensure that the higher judiciary is insulated from undue political influence. The continuance of Ashok Kumar in office — he passed way in 2009 — did indeed raise troubling questions: the collegium was against confirming him between 2005 and 2007, but, intriguingly, he got three extensions before being made a permanent judge. It is disquieting that the decisions by former Chief Justices of India in the matter had gone against the collective opinion of the collegium. The government has now confirmed in Parliament that the Prime Minister’s Office and the Law Ministry had written to the Supreme Court seeking extension of service for the judge, which lends some substance to the allegation that the DMK pressured the UPA government to swing a decision in favour of its acolyte, and that the higher judiciary complied — an allegation that has been denied promptly. It is true that the present opaque procedure of appointments needs a more efficacious and genuinely consultative replacement, but ultimately only the calibre and integrity of individuals at the helm of the judiciary can really keep political interference at bay.