Markandey Katju

Early life and education

Career

Publications

• Law in the Scientific Era
• Interpretation of Taxing Statutes
• Mimansa Rules of Interpretation
• Domestic Enquiry
• Justice with Urdu
• Whither Indian Judiciary

• Injustice to Urdu in India, published in the Tribune on 3 August 2008
• Sanskrit as a language of Science, speech delivered in the Indian Institute of Science, Bangalore on 13 October 2009
• Kalidas-Ghalib Academy for Mutual Understanding
• The Role of Art, Literature and Media
• Looking back at the Caste System
• The Ideal of Women's emancipation
• Importance of Liberty and Democracy in India
• Global Economic Scenario
• The Hart-Fuller Debate by Justice Markandey Katju – Judge, Allahabad High Court
• The Role of Media in India

  Controversies and criticism

• Addressing a seminar organised by the South Asia Media Commission, and subsequently in several articles and interviews Katju has said that "90 percent of Indians are idiots" and "20 percent Hindus and 20 percent Muslims are communal". He tried to justify his statement on the ground that 90% of Indians vote in elections on the basis of caste and religion and not on the merit of candidates, 90% Indians believe in astrology, etc. He later claimed that it was meant to awaken people to the realities of social evils like casteism, communalism in the country after two Lucknow students, Tanaya and Aditya Thakur, had sent him a legal notice.
• Katju has criticized Salman Rushdie, arguing that the author is over-praised. He said that his novel 'Satanic Verses' has deeply hurt Muslim sensitivities and that an individual's freedom of speech has to harmonised with the public interest. He also noted that Article 19 provides for 'reasonable restrictions' on the freedom of speech in the "interest of security of the State, public order, decency, morality, etc."
• Katju landed in legal trouble for his anti Odia remark on facebook page on 10 October 2016 after a SDJM court in Odihsa admitted a petition over his remark which created vehement public outcry in Odisha. In his post Katju had written: "I was asked to write about the Oriyas. What is there to write about these poor, dirty chaps? Ever since they got a thrashing at the hands of Ashoka in the battle of Kalinga they have been a dejected lot. Now all they have with them are a lot of pots, big pots and supposedly intelligent kings. And of course they have one Lord Jaggannath, to whom they pray every day for revenge on the abominable and disgusting Biharis." A day after tendering apology for his alleged derogatory remarks about Odisha and its people, former Supreme Court judge Markandey Katju on Saturday claimed to receive a flower bouquet and a "get well soon" card from the Delhi Odia Students Association. This was informed by Katju himself through a Facebook post.
• The Supreme Court on 17 October 2016 summoned former judge Markandey Katju for insinuating that the top court had "grievously erred" by not imposing death penalty on Govindachamy in the Soumya rape-murder case. The top court has asked Katju to explain on 11 November 2016 how and where it went wrong in not imposing death sentence on Govindachamy. "He is a respected gentleman. We request him to come in person and debate his Facebook post criticising the judgment. Let him come to the court and let's debate over the fundamental flaws in our verdict," a bench of Justice Ranjan Gogoi and Justice U U Lalit said and issued a notice to Justice Katju.

  Courtroom

• Commentings on a judgement given by a single judge in Allahabad High Court and in light of alleged corruption, a bench of Katju and Gyan Sudha Misra had observed that "Something is rotten in the State of Denmark', said Shakespeare in Hamlet, and it can similarly be said something is rotten in the Allahabad High Court, as this case illustrates." The Allahabad High Court had taken strong exception to the apex court's remarks that "something was rotten" and there was "rampant uncle judge syndrome" in the high court, but the Supreme Court had refused to expunge the 'rotten remark'. The Government had backed the Supreme Court in this connection.
• In May 2007, while hearing a multi-crore corruption case in the Supreme Court, Katju had made the oral observation "The law does not permit us to do it, but otherwise we would prefer to hang the corrupt". In March 2013, Katju had said that it will take India 20 years to defeat corruption. According to Katju, the reason for corruption in India today is that Indian society is in a transitional phase. As the country was moving from a feudal society to an industrial society, the old moral code was being destroyed but the new moral code of an industrial society had not yet been put in place.

  Politics

• Arun Jaitley, once a close friend, criticised Katju for selective targeting two non-Congress state governments in Gujarat and Bihar and called for his resignation as PCI chairman. Jaitley said that Katju has failed every test on which a Judge whether sitting or retired could be judged. Jaitley alleged that Katju had a political bias with respect to the burning of the Sabarmati Express in Godhra. Katju responded claiming that Jaitley was "twisting facts" and "talking rubbish" and advised him to quit politics. Katju claimed that it was not his report but a report of a three-member committee of the Press Council of India which had prepared a report censuring the Bihar government for lack of press freedom in Bihar. Referring to Jaitley's comment about being against giving post-retirement jobs to retired judges, Katju reminded Jaitley that a large number of post-retirement jobs had been given to judges when the NDA government was in power and when Jaitley was Law Minister. Katju also claimed that Jaitley's accusation of Katju targeting only non-Congress governments was false since he had also targeted Congress governments in the past.
• Katju has also been critical of West Bengal Chief Minister Mamata Banerjee for calling student Tania Bhardwaj a Maoist in a public discussion, for ordering the arrest of farmer Siladitya Choudhary after calling him Maoist when he had only asked her why she has not kept her pre-election promises, and for ordering the arrest of Professor Ambikesh Mahapatra for circulating a cartoon lampooning Banerjee. Other political parties including the CPM, the BJP, and the Congress had joined in the criticism of Mamata on these issues. Katju had also warned police and administrative authorities that they could face action for following 'illegal orders' as happened to the Nazi war criminals during the Nuremberg trials. "The West Bengal officials should take a lesson from the Nuremberg verdict if they do not wish to suffer a similar fate," Katju had said. Subsequently, the West Bengal Human Rights Commission had ordered Rs 50,000 compensation to be paid to Professor Mahapatra for the manner in which he was arrested and detained.

  Hindustani as link language of India

Indian Reunification and the existence of Pakistan

View on Jammu and Kashmir

Allegation of improper compromises in the collegium system of appointing judges

View on gay relationships

Praise

Confrontation with Indian Parliament

Notable judgements and opinions

On judiciary

• In Rama Muthuramalingam v. Dy.S.P. and later in Divisional Manager, Aravali Golf Club v. Chander Hass, he emphasized on judicial restraint and the impropriety of the judiciary encroaching into the legislative or executive domain. He re-iterated this two years later, while he was a Supreme Court Judge, in the case of.
• While dealing with the issue of judges initiating "Contempt of Court" proceedings, he observed that the authority of judges rests on public confidence, and not on the power of contempt. The Indian jurist Fali S Nariman commended Katju's view in his article "A judge above contempt" published on 5 August 2005 in the Indian Express.
• In May 2011, Katju directed Trial/High courts to award death sentences to perpetrators of "honour killings". Honour killing is the killing of a member of a family, or social group, by other members, due to the belief of the perpetrators that the victim has brought dishonor upon the family or community. In his judgement, Katju said that it was time to stamp out these barbaric, feudal practices, which were a slur on our nation.
• In January 2009, while hearing a petition filed by Archbishop Raphael Cheenath about violence against Christians in Orissa, Katju observed, "We can't tolerate persecution of religious minorities. If your government cannot control such incidents, then quit office." The Bench directed the government to provide adequate security and compensation to the aggrieved parties.
• In May 2009, Katju commented that a husband has to accept the suggestion of a wife irrespective of the fact whether it is sensible or not.
• In July 2009, Katju apologised for commenting, during the hearing of a case, that students cannot insist on wearing beards as this would lead to the "Talibanisation" of India. The comment led to much controversy: Katju and Raveendran later withdrew the related order, stating "During the hearing, certain observations were made by one of us. His intentions were not to offend anyone. However, if any one's feeling has been hurt, he apologises and expresses regret in the matter."
• In Prafull Goradia V. Union of India, a bench of the Supreme Court comprising also Katju, dismissed petitioner's claim that Haj subsidies provided by the Government of India were unconstitutional. The Bench observed that, "the object of Article 27 is to maintain secularism, and hence we must construe it from that angle."
• Following this judgement, in the case of Md Sukur Ali Vs State of Assam, a division Bench of Katju and Justice Mishra ruled that criminal defendants have a right to counsel. "Article 21 which guarantees protection of life and personal liberty is the most important of all the Fundamental Rights guaranteed by the constitution," the apex court bench said. They further observed that, "In the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him," This judgment received both national and international recognition.
• In January 2011 in the case of Kailas & Others versus State of Maharashtra TR. Taluka P.S., Katju said in the judgement that India is largely a country of old immigrants and that pre-Dravidian aborigines, ancestors of the present Adivasis were the original inhabitants of India. About 92 to 93 percent people living in India today are descendants of immigrants.
• Katju's opinion in D. Velusamy vs D. Patchaiammal, delivered on 21 October 2010, relating to the maintenance of a woman in a live-in relationship, was the first time the apex court laid the legal framework for recognizing a woman's rights in a live-in relationship.
• Katju issued notices to the Centre and state governments directing them to file compliance reports on steps taken to rehabilitate sex workers in the case of Budhadev Karmaskar vs State of West Bengal. The accused had brutally murdered a sex worker and claimed leniency in his petition in the Supreme Court, citing the victim's profession. The court dismissed the petition, stating that "prostitutes have a right to live with dignity under Article 21 of the Constitution of India." The court further observed that "This is a case of brutal murder of a sex worker. Sex workers are human beings and no one has a right to assault or murder them."
• In a judgement delivered on 1 February 2011, Katju highlighted the malaise of land grabbing of village community land by private and commercial entities. He noted that the purpose of village community land is community benefit like schools, playgrounds, water storage facilities etc., hence he directed the state governments to prepare schemes for eviction of illegal occupants of this land.
• On 8 March 2011, Katju delivered a "landmark" judgement legalizing passive euthanasia—or withdrawal of life-support systems—for patients who are brain dead or in a permanent vegetative state, and whom doctors have lost hope of reviving even with the most advanced medical aid. The detailed process of passive euthanasia includes strict guidelines that must be met, including a case-by-case review of medical condition by a team of court-appointed doctors and prior approval of the High Court. The Judge further observed that Section 309 of the Indian Penal Code, according to which attempt to suicide was a criminal offence, was archaic and needed review. He said, "A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code." The judgement received widespread commendation as "brave", well researched and "path breaking"
• On 16 March 2010, in an unusual step, Katju appealed to Pakistan to consider granting remission to Gopal Dass, an Indian prisoner detained in the Lahore central jail for 27 years. He based this appeal on humanitarian grounds and on "The Quality of Mercy". The supreme court bench headed by Katju noted, "We cannot give any directions to Pakistan authorities because we have no jurisdiction over them", however it went on to quote a couplet by Faiz, "Qafas uddas hai yaaro sabaa se kuch to kaho, Kaheen to beher-i-khuda aaj zikr-i-yaar chale", to seek mercy for Dass. Pakistan took cognizance of this appeal of the Indian court, and within a few days the President of Pakistan, Asif Ali Zardari, decided to remit the remaining jail term of Gopal Das and to release him.
• On 13 May 2011, a Supreme Court bench involving Katju said that fake encounters are nothing but cold-blooded brutal murders which should be treated as the rarest of rare cases and police personnel responsible for it should be awarded death sentence. The observation was made while rejecting bail to Mumbai policemen involved in the fake encounter at Nana-Nani Park at Versova. A similar observation was made while hearing the fake encounter case of an alleged gangster by Rajasthan Police on 23 October 2006.
• On 17 June 2011, Katju made a personal appeal to Prime Minister Manmohan Singh to release on "humanitarian grounds" Khalil Chishty, an elderly Pakistani virologist in Indian prison since 1992. Justice Katju expressed fear that if Chishty is not released forthwith, he may die in the jail by the time his appeal is decided by the Rajasthan high court. The move did not appear to go down well with the main opposition party BJP, which found as "odd" the appeal to free 80-year-old Chishty, a murder convict. "It is odd that an SC judge is writing to the PM for securing the release of a Pakistani prisoner, even in his individual capacity," BJP spokesman Ravi Shankar Prasad said. Manmohan Singh instructed the Home Minister to examine the request of Katju. Subsequently, in February 2012, the Supreme Court acquitted Khalil Chishti of the 20-year-old murder charge and allowed Chishti to return to Pakistan.
• In February 2013, Katju was involved in a war of words with the BJP when over his controversial remarks on the involvement of Narendra Modi in the 2002 Gujarat Violence. He compared the riots to the Kristallnacht opining that he did not believe that Modi didn't have a hand in the violence. Katju's views on the Gujarat violence echoed those of V. N. Khare, former Chief Justice of India, in an interview published in May 2004 and another interview published in March 2012 Fali Nariman had also endorsed the views of Katju on the Gujarat violence
• In March 2013, Katju appealed to the Maharashtra governor K Sankarnarayan seeking pardon for Sanjay Dutt on humanitarian grounds under Article 161 of the Constitution after the apex court had upheld his five-year sentence for having in his possession some prohibited weapons which the court held had been procured for self-defense. He had provided ten reasons for pardon on humanitarian grounds which includes personal suffrage, had to go to court, could not get bank loans, could not go abroad without court permission, his parents worked for the good of society, married and has two small children and the fact that he has already spent eighteen months in jail for this offense.