Justice vs. Justices

The apex court’s surprising order turning Justice Katju’s Facebook post into a review petition is not only unconstitutional but also unjust.

October 22, 2016 07:21 pm | Updated September 20, 2017 05:18 pm IST

This is a blog post from

The Supreme Court has decided to review its judgment acquitting the accused (Govindaswamy) of the charge of murder in the Soumya rape case, on the basis of a criticism posted on Facebook by its former judge, Justice M. Katju. Its order is solely based on the premise that Justice Katju was a former judge of the Supreme Court, overlooking constitutional restraints preventing it from summoning the former judge.

A few days after the Court had passed its verdict holding the Govindaswamy not guilty of murder, Justice Katju posted a blog on Facebook critiquing the judgment and commenting that it be reviewed in open court. Justice Katju’s opinion was that the court had interpreted Section 300 of the Indian Penal Code, 1860 (i.e., what constitutes murder) too narrowly, and that it should have taken into consideration other portions of the Section as well.

Meanwhile, the late Soumya’s mother had already petitioned the Court praying that it review its earlier ruling and hold Govindaswamy guilty of both rape and murder. The Court heard the parties’ plea for review, chose to avoid giving any relief to the victim’s distressed mother, and instead addressed Justice Katju’s Facebook critique, turning it into a “suo motu review petition” (Suo motu power is a power of the Supreme Court to take cognisance of an issue without waiting for a dispute to come before it).

It appears that this order and the reasoning behind it is as absurd as it sounds, and that the petition is untenable due to several reasons.

The petition is unconstitutional

The Constitution clearly states that a judge of the Supreme Court cannot act or plead before any court in India after retirement. This is largely because a retired judge arguing before his former colleagues, gives him an unfair advantage over the opposing party and defies the principles of natural justice (i.e., the requirement of a fair hearing). The constitutional prohibition is therefore necessary to ensure that a retired judge arguing before any court does not inhibit, or even appear to inhibit, the process of justice. In fact, this is an important aspect of maintaining the impartiality of the judiciary, a trait which is part of the Constitution’s “basic structure”.

Evidently, therefore, the Supreme Court’s order summoning Justice Katju to appear and justify his Facebook critique is a flagrant disregard of the Constitution. It causes trust in the judiciary to be eroded, as justice must not only be done but must be seen to be done.

Disregarding judicial precedent

Judgments of the Supreme Court have the weight of law, in fact, the Court is legally bound by its own verdicts. Review petitions are an exception to this rule. Understandably, therefore, the court is required to use this power sparingly and reasonably. It is for this reason that review of its verdicts are only allowed where the error in or injustice caused by such judgment is obvious (especially in criminal cases). Restraint expected out of the court is so high that clarification, or even sympathy, are insufficient grounds for the Court to order review of a case.

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The Supreme Court has not obeyed either of these conditions in invoking the petition — its sole rationale for initiating a suo motu review is that Justice Katju was once a judge of the Court and that his online criticism “be treated with the greatest respect and consideration”. In fact, initiating the Petition would have been excusable if the Supreme Court had relied on the substance of Katju’s blog post and how it leaves scope for an alternative judgment. Unfortunately, the Court has failed to do even so much. The casual, dismissive attitude of the Court is perturbing to say the least.

It is disturbing to note that the same Supreme Court, that has stressed the importance of proper grounds in review petitions to avoid unnecessary litigation, has neglected this rule. This begs the unsettling question: is it now excusable for the Supreme Court to flout the law at whim, and call a retired judge to appear before it on the basis of his personal comments on social media?

Is it now excusable for the Supreme Court to flout the law at whim, and call a retired judge to appear before it on the basis of his personal comments on social media?

The Court’s relaxation of procedure to such an extent is unwarranted

The Supreme Court does have powers to relax procedural requirements in the interest of justice in public interest litigations (PILs), but only in cases where fundamental rights are infringed or there is a breach of public duty. This dispute, an appeal in a criminal matter whose verdict will only affect the parties involved, is hardly a PIL. So, only the parties directly affected by the dispute are authorised to approach the court for legal relief.

Therefore, Justice Katju being a stranger to the dispute, does not have any standing to appear before the court and argue for reviewing the court’s judgment. His blogpost is merely his thoughts on the judgment, and should not be given any more weight than that of any other individual’s, and can hardly be equated with a PIL. Therefore, the court’s generous use of its suo motu power to call upon a third party to appear before it is far-fetched.

The real cost of summoning Justice Katju

The Court has put the victim's mother's review plea on the backburner. In fact, this is demonstration of an already overburdened court not just entertaining but inviting additional (possibly frivolous) litigation at the cost of relief to the actual parties to the dispute.

This order of the Supreme Court may even set an ominous precedent. A judiciary that neglects its constitutional boundaries at whim, and disregards the parties to whom justice must be delivered, sets a dangerous theme for the Indian justice system.

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