‘Judges must know their limits…they must not try to run the government’
SHEKHAR GUPTA IN THE INDIAN EXPRESS
In this Walk the Talk on NDTV 24×7 with The Indian Express Editor-in-Chief Shekhar Gupta, former Supreme Court judge and now chairman of the Press Council of India, Justice Markandey Katju, talks about ‘judicial overreach’ and ‘media excesses’
My guest this week is the new chairman of the Press Council of India but more importantly a judge who is known to be a liberal lion of the bench. Justice Markandey Katju, you are somebody who combined a lot of native wisdom, literature, history and even Urdu poetry with your approach to justice.
Well, I have used Urdu poetry in many of my judgments. I will tell you just one where some OBCs beat up members of the Scheduled Caste and I thought this was highly objectionable, in fact it is a criminal offence. I began that judgment with a couplet from the great Urdu poet Firaq Gorakhpuri—“Har zarre par ek kaifiyat-e-neemshabi hai/ai sake-e-dauran yeh gunahon ki gharee hai.” It represents the transitional age in which we are living, transition from feudal agriculture society to modern society.
You gave one of the strongest judgments on honour killings.
Yes, I said death sentence must be given. These barbarians must be treated ruthlessly because we must help our society move forward into the modern industrial age and we must not be liberal with these feudal barbarians. We must hang them.
What’s your view on death sentence? Do you think it should be employed?
Yes, in certain situations. I am not a bloodthirsty person but when people do honour killings or policemen do fake encounters, girls are killed by pouring petrol on them, dowry deaths—should we be liberal with them or should we hang such people?
What about Rajiv Gandhi’s conspirators or the Afzal Guru case?
Frankly, I have not applied my mind to them. I have given a judgment that death sentence must be given in cases of fake encounters by policemen, in cases of honour killing, dowry death. Recently, I upheld the death sentence of a man who burnt his entire family.
Provided you catch the correct culprit. The whole problem is that the police are not trained in scientific investigations, so on mere suspicion they bring in somebody. The point is that they cannot catch the real culprits so whomever they think may have committed the crime, they catch hold of them.
And then use torture.
In a village if somebody comes to the police station and says that there has been a dacoity, the inspector asks who has committed it? Somebody says Kallu has committed such kinds of dacoity. So they will catch hold of Kallu and the poor child is beaten and under torture, he will confess to everything. Joan of Arc confessed to being a witch under torture. The crime is solved this way and the inspector’s job remains intact otherwise he might have been suspended. I don’t blame the police because they are not trained in scientific investigation, they are not given the equipment as in the West. All this is absent in India so it is done just by suspicion. Some bomb blast takes place, they catch hold of the local Muslims and young people and implicate them. The electronic media has played a very nefarious role in this. The moment a blast takes place, within a few hours of it, most TV channels start saying that an e-mail has come or an SMS has been received that the Indian Mujahideen has claimed responsibility or Jaish-e-Mohammad has claimed responsibility. An e-mail or an SMS can be sent by any mischievous person but in a very subtle way the impression goes that all Muslims are terrorists, all of them throw bombs. You are demonising Muslims and you know the level of alienation that has been created among them.
Do you have any views on Prashant Bhushan’s view (on Kashmir) or on how he was attacked for his views?
I condemn all kinds of violence but this must also be considered…if you say that Kashmir can secede, then the Nagas will say they can secede, Mizos will say they want to secede, Tamilians will say they want to secede. Where is the end? You know this is a country of immigrants. You must realise what is India—92-93 per cent of people living in India today are descendants of immigrants. We are like North America and because we are a country of immigrants, there is tremendous diversity and therefore we must be tolerant with each other and respect each other. At the same time, we must be united. Did Abraham Lincoln allow the southern states of USA to secede? They said that we have formed a Confederate States of America…separate government. Abraham Lincoln said you will not be allowed to secede. He went to war. There is so much diversity in India, if you allow Kashmir to secede, then everyone will talk of seceding. We must remain together, you must understand what is India.
Yes, there should be democratic ways of resolving disputes. A case came before me, a dispute between the state of Assam and the state of Nagaland. The border had not been demarcated so we appointed mediators. We appointed Sriram Panchu, one of the top mediators of the country, and Niranjan Bhatt, also a top mediator. You know, the Nagas said that for the first time they were being heard. They said the British never heard us, the Indian government never heard us and at least here are people who are appointed by the Supreme Court who are hearing our point of view and hopefully some consensus may emerge.
So you think that while conflict resolution should go on, it should not be pushed into the domain of re-writing of the Constitution?
No, we have to remain united. I don’t agree with the saying that you can secede.
So was he (Prashant Bhushan) wrong in saying that?
I think he was wrong.
But at the same time the attack on him was wrong.
The attack was wrong, you should not commit acts of violence.
Lately, we are seeing judges getting angry in the Supreme Court. In fact, they use the expression ‘we are getting angry’. You know, the one who wields the big stick must speak softly.
When I became a judge of the High Court in 1991, I started reading the Mahabharata and one part of the Mahabharata is called Shanti Parva. When the war ended, Bhishmah Pitamah was lying on a bed of arrows and Lord Krishna went to Yudhishthira and said, ‘Now the Kauravas have been killed and you are going to be the next king. On how to conduct yourself as a king, Bhishmah Pitamah is the best person to tell you and he is shortly going to give up his life. So this is the opportune time, go and ask him’. So Yudhishthira went and sat at his feet, he put one question, Bhishmah Pitamah gave the answer, a second question, an answer. So, the questions-answers are part of a volume called Shanti Parva and in that, one of the things Bhishmah Pitamah said was that the king should neither be too harsh nor too lenient, he should be a mixture of the two. Sometimes you have to be harsh against evil people, but sometimes you should be soft. If you are always soft, people will revolt against you and if you are always harsh, the public will run away so it has to be a combination of the two. When I read this, I thought this is what applies to a judge too.
But the anger that we are generally seeing is more of what the executive now complains about—obiter dicta.
I don’t want to comment about other judges but I became a judge in the Supreme Court in 2006 and shortly after, I gave a judgment in which I said that the judges must know their limits and not behave like emperors. They must not try to run the government; judges must not ordinarily encroach into the domain of the legislature or the executive. Judges must know their limits, they must be restrained, particularly in economic and social matters. When it comes to civil liberties and fundamental rights, then a judge must be an activist.
What worries you more—judicial overreach or media overreach?
There should not be any overreach. Both must act in a very restrained manner. I have great respect for the media. In my opinion, the media is absolutely essential in a democracy.
What’s worrying you about the media right now?
There is a perception that it is going overboard. To give you an example, in 2009, when the Lok Sabha elections were held, this paid news scandal took place on a very large scale. Just three days ago, a senior lady politician told me she was contesting elections and that one leading newspaper came and demanded Rs 18 lakh for favourable coverage and (said) that if you don’t give it, then (you’ll get) adverse coverage.
Tell us a bit more about your danda remark, which obviously has raised people’s hackles. The last thing we expect in your hands vis-a-vis the media is a danda.
I am a totally democratic person. I believe in the method of discussion, consultation, persuasion. If the media has done something wrong, the first attempt should be to resolve the matter in a democratic method and in that connection every two months or so, I am going to hold meetings with all of you. Let’s resolve all the issues by the democratic method. If, despite our best efforts, you prove to be incorrigible, then the danda will be used. I will keep it in reserve.
What is the danda?
Bin bhaye hovat na preet (without fear there is no love). Have you read the Ramcharitmanas? Bhaye aapke upar hona zaroori hai (you should have fear). Don’t think you can do anything you like. You are accountable. In a democracy, all institutions, including the media, are servants of the people.
But there is danger in it. Today you are a liberal judge, tomorrow under a more problematic government, there might be a more problematic head of the Press Council. If these powers are given, they can be misused.
There is never a 100 per cent guarantee.
Are you very exercised about media excess?
Yes, very much. I will give you one example—the judge of a High Court where I was chief justice was known to be a very upright young man. On two consecutive days, a TV channel showed his picture like a criminal, next to the picture of a notorious criminal, and the allegation was that he had grabbed some land. I made a personal and thorough inquiry and it was all false. Now see how demoralising it is.
But the laws that are available, the law of libel, we know it takes a long time, but isn’t it a better way forward to strengthen the law of libel, decriminalise it and like the British law, make the civil law stronger?
All this is really unnecessary, we will hold discussions.
I am asking you a much larger question: do you believe that the law of libel should be decriminalised or not?
I have not really considered it. I don’t intend to consider it for it’s unnecessary. I am a democratic person. I would like to sit with all of you, not only print media but the electronic media too, discuss the issues. Suppose people are criticising some issues, I will bring it to your notice. We should be respected by the people. The media must get the respect of the people. We are accountable. I am accountable to the people. You think as chairman of the Press Council, I can do anything I like? I am also a servant of the people, you too are. We should be proud to be servants of the people. So we will resolve matters by democratic methods, discussions, negotiations, but as I told you, I will keep the danda in reserve.
Have you had some difficult brushes with the media?
I respect the media. The media has played a historical role in the progress of mankind but you should continue doing it, you must serve the people. Yeh nahi ki bas aap apne malik ko serve karein, aapko junta ko bhi serve karna hai (you shouldn’t serve just your bosses, you have to serve the people too). I have nothing against the corporates, there is nothing wrong in making money but you must be socially responsible too.
All I can say is that we are much happier to have you as a guardian of the media than a danda wielder from the government side.
You must understand that the Press Council is an independent body, we are not subordinate to the government, it’s a statutory body.
But its role has been whittled down greatly by, if I may be honest with you, some very political chairman.
I will not comment on any of my predecessors but as far as I am concerned, I am a servant of the people and that is the only title I want.
We started this with a Urdu couplet that was in a different context. Will you give us one as a parting message to your new charge, which is Indian journalism?
I have used so many couplets. There is one couplet which I wrote in a judgment and somebody came from Lahore and said that lawyers there are quoting it. It is right in the beginning of the judgment, it is a couplet by Faiz Ahmed Faiz whose centenary we are celebrating this year. Baney hain ahel-e-hawas muddai bhi, munsif bhi/kise wakil karen, kise munsifi chahen. It means that selfish people have become the plaintiff and the judge. Kise wakil karen, kise munsifi chahen: whom should we make a lawyer, whom should we go to for justice?
And you think that applies to the media a little bit right now?
It’s a couplet written by Faiz at the time of martial law.
But is it a caution to the media?
It’s a caution to everybody, not just to the media. It’s caution to judges, caution to bureaucrats. We are all servants of the people, we all have to behave in that manner.
On that cautionary note, may we have many more such conversations and not many admonitions. But as I said, you are such a liberaliser, that we feel completely safe with you.
Transcribed by Ipsita Mazumdar
- Justice Katju: A colourful judge with a social conscience (indialawyers.wordpress.com)
- Justice Katju was part of the Bench that gave landmark judgments (indialawyers.wordpress.com)