The ‘Supreme Quote’ Judge: Examining the Judicial Philosophy

of Justice Markandey Katju*

- Abdaal M. Akhtar**
2008-40
The study of an individual judge of the Supreme Court, as distinct from the institution
itself, is a decidedly American idea and has its origins in the works of the early twentieth
century legal realists.1 Rejecting the notion that judges dwelled in ‘splendid isolation’
and only discovered the law, the realists insisted that the discretion exercised by the
judges had little to do with the law per se and was instead conditioned by their
prejudices, personalities, value systems and a host of other influences.2 Taken together,
these may be safely clubbed under the heading of Judicial Philosophy.3 For the purposes
of this paper, I shall proceed on the assumption that such an idea is substantially true.
In the absence of anything in India corresponding to the US Senate’s Confirmation
Hearings that could have brought out these ‘prejudices and value systems’, I shall be
relying almost exclusively on delivered judgments to discern the same.4

Justice Markandey Katju had a long career in the judiciary, having served as a judge for
close to twenty years. Originally from the Allahabad High Court, he also served as the
Chief Justice of the Delhi and Madras High Courts before being elevated to the Supreme

* Submitted to Prof. Amita Dhanda as part of the course on Judicial Process and Interpretation of Statutes. The
researcher especially wishes to thank Mr. Manav Kapur for his suggestions and useful advice.

** IV Year, BA LLB (Hons), NALSAR University of Law, Hyderabad, India

1 W.W Cook, Logical and Legal Bases of the Conflicts of Laws, Yale Law Journal 33 (1934)

2 David Danelski, Values as Variables in Judicial Decision Making: Notes Toward a Theory, 19 Vand. L.
Rev. 721 (1966)

3 Sue Davis, Justice Rehnquist’s Judicial Philosophy: Democracy v. Equality, 17 Polity 88 (1984)

4 This method has been used earlier. See, for e.g., WALLACE MENDELSON, JUSTICES BLACK AND
FRANKFURTER: CONFLICT IN THE COURT (1961)

1
Court in 2006. 5 His recent retirement in September 2011 attracted widespread
attention, both in the legal fraternity as well as the popular media. This was particularly
remarkable because it came in the midst of a rash of Supreme Court retirements, none
of which garnered even half the column space (and kilobytes) that his’ managed. 6
Clearly, Justice Katju had managed to carve out a niche for himself separate from the
rather faceless, phalanx-like ranks of the higher Judiciary. This is what makes him an
ideal subject for this study. What I propose to do in the course of this paper is to
examine Justice Katju under two broad headings-his prejudices and motivations and his
conception of the role of a judge. While it is tempting to do so, I shall refrain from
examining his High Court judgments for reasons of brevity and shall confine myself
solely to his Supreme Court decisions, except in one instance where a High Court
judgment contains the most succinct exposition of his views yet.

I. PREJUDICES AND MOTIVATIONS

Subjectivity in decision making is an unavoidable consequence of our adjudicatory

system.7 One way of keeping up what some would call the pretence of objectivity is to
ensure that decisions when rendered are backed by an identifiable process of decision
making. A discernible lack of this in his decisions is the most common criticism of
Justice Katju.8

5 Justice Markandey Katju: A Short Biography, THE SUPREME COURT REGISTRY, available at
http://www.supremecourtofindia.nic.in/judges/bio/132_mkatju.htm, last accessed on 2nd October, 2011

6 See, for e.g., J. Venkatesan, Justice Katju was Part of the Bench that Gave Landmark Judgments, THE
HINDU, September 20, 2011, available at http://www.thehindu.com/news/national/article2468372.ece,
last accessed on September 24, 2011.

7 Supra, n.2, 726; An example from the Indian judiciary would be the landmark case of Naz Foundation v.
Government of NCT, 2010 Cri LJ 94 where Justice Shah’s idea of what comprised Constitutional Morality
masqueraded as something ‘gleaned’ from the Constitution.

8 Rajeev Dhavan, Katju Test offers no Solutions, INDIA TODAY, December 6, 2010, available at
http://indiatoday.intoday.in/story/katju-test-offers-no-solutions/1/122301.html, last accessed on
October 4, 2011

2
I now proceed to examine how Justice Katju’s ideas on a variety of social issues inform
his judgments. What is problematic about this is that they are not necessarily
subservient to the evidence adduced in Court. His widely reported comments on beards
and burkhas amounting to Talibanisation are a case in point.9 While these were oral
observations and find no mention in the judgment; such lack of nuance, especially in a
judge of the apex court, can hardly be excused. Katju’s secular credentials can scarcely
be doubted, as even a cursory perusal of Prafull Goradia 10 would show, but such
offhand remarks not only led the petitioner in the previous case to accuse him of bias
but also resulted in him having to apologise for the same. 11 The very impartiality of the
judiciary, and the necessity of preserving it, both in practice as well as appearance, that
Katju had stressed on so expansively in Rana Muthuramalingam12 lay in shreds as a
result.

Another example of how bona-fide intentions may yet lead to dubious results is
furnished by the Buddhadev Karmaskar13 line of cases. Justice Katju’s intention here
was quite obviously to improve the lot of the sex workers of India, many of whom live in
appalling conditions of exploitation and misery and the judgment cannot be faulted on
this ground. Where he erred, in addition to what many perceived as a hesitation to
challenge the current prototype-as shall be described later, was in the way he
approached the problem. Replete with selected literary references that spoke of ‘fallen

9 SC says no to beards in Educational Institutions, THE TIMES OF INDIA, March 30 2009, available at
http://articles.timesofindia.indiatimes.com/2009-03-30/india/28010843_1_muslim-student-beard-girl-
student, last accessed on October 4, 2011

10 Prafull Goradia v. Union of India, (2011) 2 SCC 568

11 Tannu Sharma, Judge apologises for Talibanisation remark, THE INDIAN EXPRESS, July 7, 2009,
available at http://www.indianexpress.com/news/judge-apologises-for-talibanisation-remark/485852/,
last accessed on October 5, 2011

12 Rana Muthuramalingam v. Deputy Superintendent of Police, AIR 2005 Mad 1

13 Buddhadev Karmaskar v. State of West Bengal, 2011 Cri LJ 1684; See also the succeeding order at 2011
(8) SCALE 155

3
women’14, the judgment was a rescue act that failed to look at the larger problem. There
was no talk of creating a safe space for the prostitutes or addressing the problem of
exploitation separately. In Justice Katju’s worldview regulated prostitution cannot
possibly be a panacea for the problems that face the sex workers and prostitutes are
human beings who need ‘sympathy’.15 Even if we are to assume that this was because of
a hesitation to interfere in what is a question of public policy, we find no reasons in the
judgment about why the Court’s solution, which is admittedly no less a question of
policy, was prescribed. The solution too comes with its own set of issues. In suggesting
that women ‘rescued’ from prostitution should be made to take up stitching and
sewing16, Justice Katju is not only accommodating the stereotype of non-controversial
women’s work but is also very conveniently ignoring the fact that in many instances,
prostitution may not be an enforced profession. Indeed Katju expresses his
obliviousness to this when he says that ‘no woman would ever do such work of her own
accord’. 17 Ignored also is the detail that prostitution is not confined exclusively to
women but also extends to transsexuals and men. This willing away of reality can hardly
be expected to solve the problems the Court wished to address.

A few more examples may be quoted here. In Velusamy v. Patchaiammal,18 Justice

Katju whipped up a storm of controversy by using the word ‘keep’ while referring to a
woman in a live-in relationship. Objections raised in Court over this were sought to be
allayed by his brother judge who wondered if ‘concubine’ would be a suitable

14 2011 (9) SCALE 327

152011 Cri LJ 1684, para 4

16 Id., para 19

17Id., para 18

18 AIR 2011 SC 479

4
replacement!19 The Court was later also criticised for ignoring the decision of another
bench barely a fortnight earlier which had referred a similar matter to a larger bench
because of the same problems that were faced here. 20 Moving beyond the marked
insensitivity displayed by the Bench, the Court’s decision is open to criticism on another
ground-one that is also illustrative of Justice Katju’s complex judicial philosophy.
Notwithstanding his frequent references to India’s distinct social setup and his
championing of the Mimansa School of Interpretation 21 , Justice Katju, in practice,
overly relies on foreign precedents. What was largely a question of interpretation of a
statutory provision (Section 125 of the Cr.PC) was needlessly complicated by myriad
references to American case law that had no direct bearing on the matter, so much so
that he admits the lack of any statutory basis for maintenance in the US and yet quotes
in-extenso from US judgments.22 Evidently, the need to support one’s conclusions will
make one clutch at anything and quote from anywhere with little thought to the
relevance of it.

The death penalty is another fascinating area where Justice Katju’s philosophy may be
explored. During his term on the Bench, he gave a wide interpretation to Bachan
Singh 23 in order to punish crimes against women-what he called ‘social crimes’. 24
‘Crimes against women’, he says, “are not ordinary offences. They disrupt the entire
fabric of the society and hence merit the strictest punishment.” 25 Here again we

19 Fury in Court on use of Keep, THE TELEGRAPH, October 23, 2010, available at
http://www.telegraphindia.com/1101023/jsp/nation/story_13090743.jsp, last accessed on October 7,
2011

20 Chanmuniya v. Virendra Kumar Singh and Anr, 2011 Cri LJ 96

21 Markandey Katju (ed.), K.L SARKAR, MIMANSA RULES OF INTERPRETATION (2003)

22 Supra, n.18, para 25

23 Bachan Singh v. State of Punjab, (1982) 3 SCC 24

24 Satya Narayan Tiwari v. State of UP, (2010) 13 SCC 689

25 Id., para 9

5
encounter Justice Katju’s desire to maintain social harmony. While his sentiments may
be laudable, the legal soundness of death-penalty-for-a-class-of-offences is suspect,
especially in light of the cases that have followed Machhi Singh.26 This preference for
the death penalty is by no means limited to cases of dowry deaths. In a curious
judgment, also one of his last, Justice Katju adds contract killing to the rarest of rare list
in exactly those many words.27 The same judgment also talks of the importance of the
retributive theory of justice.28 Soaring rhetoric of the kind displayed in Satya Narayan
Tiwari will need firmer ground than mere societal interest to take flight from. Justice
Katju was aware of this and therefore used the ‘Rarest of the Rare Test’ to circumvent
this. He correctly interpreted Bachan Singh to mean that rarest does not mean the rarity
of the crime but at the same time he refused to be bound by the representative list of
‘rare’ offences evolved over the years by the Supreme Court, constantly falling back on
the social-fabric argument, even if it was against the grain of the worldwide judicial
trend on the subject. Justice Katju by no means was unaware of the latter, considering
his fondness for foreign case law. Preserving the social order therefore appears to be his
primary motive and this conclusion finds support from his espousal of retribution as a
valid ground for the imposition of the maximum punishment.

II. BALANCING INTERESTS: JUSTICE KATJU, JUDICIAL ACTIVISM AND THE

COMMUNITY

The Indian Supreme Court has, in the post PIL era, taken upon itself the mantle of the
last refuge of the wronged and the oppressed. In this process it has issued a wide range
of opinions that run the course from an Indian version of Miranda Rights 29 to the
expression of concern over attacks on Indian students in Australia.30 While praised by

26 AIR 1983 SC 957

27 Ajit Singh Gujral v. State of Maharashtra, 2011 (10) SCALE 394

28 Id., para 1

29 D.K Basu v. State of West Bengal, (1997) 1 SCC 416: AIR 1997 SC 610

30 Ranveer Yadav v. Union of India and Others, WP 262 of 2009

6
many, the Court’s activist role has also come under criticism from many quarters and
engendered unease 31 , not least among many judges themselves who feel that this
constitutes an overstepping of constitutionally mandated boundaries.32

Justice Katju made his views clear on this subject very early. In a rather rambling
judgment33 when he was the Chief Justice of the Madras High Court, he says34:

“The constitutional trade-off for independence is that Judges must

restrain themselves from the areas reserved to the other separate
branches... [T]he legislature is the best judge of what is good for the
community on whose suffrage it came into existence. In our opinion the
same principle will also apply to administrative decisions... if the judiciary
does not exercise restraint and over-stretches its limits there is bound to
be a reaction from politicians and Ors (sic)... The politicians will then step
in and curtail the powers, or even the independence, of the judiciary.”

He returns to the theme with gusto when on the Supreme Court bench. In no less than
three cases in quick succession35, he harshly criticised ‘judicial deviation’ into territory

31 A recent example would be the Union of India objecting to the Supreme Court’s continued oversight of
the Spectrum Allocation case. See, J. Venkatesan, Don’t Cross the Lakshman Rekha-Centre Tells Court,
THE HINDU, September 24 2011, available at http://www.thehindu.com/todays-paper/tp-national/tp-
otherstates/article2481427.ece, last accessed on October 2 2011.

32 Judicial Restraint finds expression in many cases, the most famous probably being ADM Jabalpur v.
Shivkant Shukla, (1976) 2 SCC 521: AIR 1976 SC 1207, where Justice Bhagwati, in his pre-activist days,
said, “I do not think it would be right for me to allow my love of personal liberty to cloud my vision or to
persuade me to place on the relevant provision of the Constitution a construction which its language
cannot reasonably bear.”

33 Rana Muthuramalingam , Supra, n.12

34 Id., para 35-40

35 S.C Chandra v. State of Jharkhand, AIR 2007 SC 3021, Indian Drugs and Pharmaceuticals Ltd v.
Workers of Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408 and most importantly in
Divisional Manager, Aravalli Golf Club v. Chander Hass, 2007 (14) SCALE 1

7
reserved for the Executive and the Legislature and accused such decisions of ‘upsetting
the delicate constitutional balance’ between the three organs of Government. He was
ploughing a lonely furrow though; other judges in an increasingly activist-Supreme
Court were quick to distance themselves from his observations.36

It is a different Justice Katju in Pushpa Vanti v. Union of India37 however. Outraged at

the treatment meted out to former soldiers of the Indian Army, the Court directed the
setting up of an Armed Forces Grievances Redressal Commission, arguably a policy
matter, and also took it upon itself to appoint its Chairman and Members, fix its powers
and procedure as well as provide ‘individual office rooms to its members’. In a similar
vein is Gopal Dass v. Union of India38 with its extraordinary personal appeal to the
Pakistani authorities, buttressed by Shakespeare and Faiz, to release an Indian
languishing in a Pakistani jail for twenty five years. The cake is however taken by
Buddhadev Karmaskar 39 , already referred to above, where a criminal appeal was
converted into a full-fledged scheme for rehabilitation of sex workers. In the best
traditions of Vishakha40 and Pushpa Vanti, the Court established an empowered panel,
fixed its functions, perused its recommendations and even directed the Government to
implement these ‘laudable suggestions’.41

How does one reconcile these two aspects of the same judge? There is Katju the
restraintist who balks at interfering in administrative decisions and submits to
Legislative supremacy and there is also the Katju who thinks it fit to appoint committees

36 See, Pasayat, J.’s oral observations on December 11, 2007 as reported in THE INDIAN EXPRESS, 12th
December, 2007, available at http://www.indianexpress.com/news/apex-court-says-go-by-judgment-
not-observations-made-by-judges/249343/, last accessed on 2nd October, 2011

37 (2011) 1 SCC 193

38 (2011) 4 SCC 300

39 Supra, n.10

40 Vishakha and Ors v. State of Rajasthan, AIR 1997 SC 3011

41 See, Order dated 15th September, 2011 in Buddhadev Karmaskar (Supra, n.10)

8
to find out, inter alia, how sea water may be converted into potable water 42 , and
intervene in what are essentially policy matters. The answer lies in his idea of what a
judge ought to do.

The Indian Supreme Court is not marked by the kind of sharp ideological divide that
characterises the Supreme Court of the United States. The absence of large benches in
most cases means that more often than not the senior judge manages to have his way. 43
In this rather fluid setup, it is difficult to categorize judges as originalist, constructionist
or activist. What most Indian judges therefore do is perform a kind of balancing act
where lip service is paid to one side of the activist debate but a variety of positions are
taken during actual adjudication.

It will be observed that the cases where Justice Katju displayed ‘activism’ were all
concerned with individual or group rights.44 This activism however came with a rider.
The ‘rights’ of the prostitutes were sought to be secured within the existing paradigm.
No different was the treatment of the Euthanasia case.45 The life of the subject here was
examined from a very physiological lens. Her ‘life’ was the function of her pulse. Little
attention was paid to her status as a person with a physical and mental disability. While
progressive on the face of it, the judgment only confirmed and reinforced the existing
paradigm and the social structure that supports it.46 He showed an urge to correct what

42 Rajeev Dhavan, Supra, n.8

43 Even in the rare instances where large benches are formed, the Chief Justice almost always manages to
carry the majority with him. Particularly illustrative is the example of Chief Justice Subba Rao in
Golaknath v. State of Punjab, AIR 1967 SC 1643. See, generally, ZOYA HASAN ET AL., INDIA’S LIVING
CONSTITUTION: IDEAS, PRACTICES AND CONTROVERSIES 168 (2005)

44 While admittedly a generalization, an analysis of his major judgments, of the kind undertaken in the
course of his research, would seem to confirm this assertion.

45 Aruna Shanbaug v. Union of India, AIR 2011 SC 1290

46 Interestingly enough, the judgment completely ignores the UN Convention on Rights of Persons with
Disabilities which India has signed and ratified. Evidently, Justice Katju’s love for foreign authorities is
confined to American case law.

9
he saw as wrong with the status quo and yet there was a curious reticence to go beyond
into uncharted territory. The reason may have been an attack of judicial restraint or (as
is more likely) simply an unwillingness to challenge long established societal mores.
This sort of attempt at equilibrium has been popularly labelled Representative
Balancing.47

This deference is grounded in Justice Katju’s conception of democracy and community.

A good man is simultaneously a good member of the society and a good judge too. 48 Just
like democracy in practice, a balancing judge too relies on the community as a form of
social structure that mediates between the individual and the government. This explains
his unwillingness to challenge the norms circumscribed by it.49

III. CONCLUSION

How does one pigeonhole Justice Katju? Using an American model, his record while on
the Supreme Court may be categorised as tilting towards Conservatism. Almost
invariably, he upheld State sovereignty and in administrative cases, always ruled in
favour of granting increased autonomy to Civil Servants for discharging their duties. He
exhibited reluctance, nay even refusal, to overturn criminal convictions, especially
where the crimes impinged on his beloved ‘social fabric’. These are all identifiable
markers of a Conservative judge. Indeed, Katju may have little issue with the
proposition that liberty and social order must go hand in hand. Yet, nothing could be
farther from the truth to assert that Katju is, in the political sense of the term, a

47 Chayes, The Role of the Judge in Public Law Litigation, 89 Harvard Law Review 1281, 1309 (1976)

48 See, Fried, Two Concepts of Interest: Some Reflections on the Supreme Court’s Balancing Test, 76
Harvard Law Review 755 (1963); See also, E ROSTOW, THE SOVEREIGN PREROGATIVE, THE SUPREME COURT
AND THE QUEST FOR LAW 22-23 (1962). As Rostow argues, the officers of the law, be it a lawyer or a judge,
are all bound by the same norms. There is no difference between law and policy. In practice, they always
follow the established norms.

49 The American Supreme Court furnishes us with another example in the form of Justice Powell. See,
Paul W Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell,
97 Yale L. J. 1 (1987)

10
conservative. There is his record, already referred to earlier, on individual and group
rights where even in a limited sense he can be very activist indeed. Therefore I submit
that for Justice Katju, adjudication is not a political (in the way the Americans would use
the term) but a philosophical exercise. It is an endeavour where his ‘what-he-ought-to-
do’ is informed not by learnt political theory, but by a deep seated and even more deeply
held conviction that it is the right thing to do. Naturally therefore when he rules on
issues that directly affect individual life and liberty (like the plight of helpless veterans),
he brooks no challenge to the powers that he exercises as a Supreme Court judge.50 On
matters like economic policy or parliamentary procedure where the human element is
less visible, he prefers to toe the establishment line-confident in his assertion that
judicial review is a check on, and not a substitute for, popular majority.51

I have already dwelt at length upon Katju’s obsession with maintaining the social order.
He recognises that it is not perfect; indeed as he observes in so many of his dowry death
cases, Indian society has ‘fallen to great depths’.52 The solution for him was not to go the
radical (in the activist sense) way. Hang the rapist and the bride burner, get the
prostitutes back into ‘normal society’ by giving them work that ‘normal’ (in the
majoritarian sense of the term) women allegedly do. This is in keeping with his generally
socially conservative beliefs.

There is much to be criticised in Justice Katju. His admirers talk of him of ‘doing the
right thing’ sometimes ‘in the wrong way’. A feeling of 'this is right' cannot provide an
adequate foundation for judicial functioning because the Court must explain and justify
its results. Articulate reasons, not silent intuition, is the only possible source of
legitimacy for judicial decisions. Without such an explanation at the heart of the judicial
decision, the Court is open to charges that it has, in the best case, not applied its mind
and at worst, acted in a malafide manner or usurped the functions of the political

50 As he never ceased pointing out “Yeh ghareebon aur vidhvaaon ka Court hai” (This is a Court (that)
listens to the poor and the oppressed)

51 Divisional Manager, Aravalli Golf Club v. Chander Hass, 2007 (14) SCALE 1

52 See, for e.g., Ajit Singh Gujral, Supra, n.27, para 2

11
institutions of government. The latter charge may not stick to Katju, but his manner of
adjudication does make him open to such accusations. In his eagerness to not disturb
the status quo as far as possible, Katju resembled the late Justice Mathew in many ways.
His judgments promised much, but delivered little. Community welfare is a shaky
ground to deny a wide reading of individual liberties. A Court can never claim to
represent the community, especially in a democratic system where it will always finish
second to the popularly elected government. A judge who refuses to distinguish
individual rights from community rights will never be able to effectively fulfil his role.

Jane S. Schacter would probably categorise Katju as a Preservationist Judge53, given his
penchant for appointing committees and specialised investigating bodies in almost
every case where he displayed any trace of activism. While this may be fair enough, I
think it would be too simplistic. The popular characterisation of Justice Katju as a
‘maverick’ judge obviously misses the point about philosophy and social order that I
have made earlier. To understand him and his judgments, we need to look at the ‘moral
motivations’ that have shaped his judicial mind. Indian judges have not been shy to
acknowledge this fact. 54 Born and brought up in the first generation of independent
India, Justice Katju’s views and outlook are decidedly Nehruvian. He may not be a
classical Nehruvian (his social views are more to the right), but his approach to the
division of powers, his commitment to minority rights and the wide leeway he gives to
the Executive bear the distinct imprint of left wing liberalism, Nehru style. This
submission may be a stretch, but it is also a very Indian way of judging a judge who in
more ways than one was unique.

53 Jane S Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation,

108 Harv. L .R. 593 (1995)

54 The earliest instance may be found in the judgment of Patanjali Sastri, J. in A.K Gopalan v. State of
Madras, AIR 1950 SC 27 where he admits as much.

12
 Selected Bibliography
 Charles Fahy, The Judicial Philosophy of Mr. Justice Murphy, 60 Yale L.J. 812 (1951)
 David Danelski, Values as Variables in Judicial Decision Making: Notes Toward a Theory, 19 Vand.
L. Rev. 721 (1966)
 Fried, Two Concepts of Interest: Some Reflections on the Supreme Court’s Balancing Test, 76 Harvard
Law Review 755 (1963)
 Paul W Kahn, The Court, the Community and the Judicial Balance: The Jurisprudence of Justice Powell,
97 Yale L. J. 1 (1987)
 Robert E Riggs and Thomas D Proffitt, The Judicial Philosophy of Justice Rehnquist, 16 Akron L
Rev. 555 (1982)
 Sue Davis, Justice Rehnquist’s Judicial Philosophy: Democracy v. Equality, 17 Polity 88 (1984)

13