Supreme Court and Markandey Katju set to make legal history

What a way to make history! A retired Judge of the Supreme Court — Justice Markandey Katju — has been summoned to the Supreme Court to come personally and debate in the open court on why he thought in the context of Sowmya murder case judgment, which had resulted in commutation of death sentence to life imprisonment of the convict Govindasamy, that “a grievous error of law” had taken place.

The retired judge Katju has been known to tick off of anyone and everyone, but he may have gone too far this time in ticking off the top court. He has been summoned 'debate in open court' on his controversial blogpost — Satyam Bruhat. Such an occurrence has been unheard of in the 66-year history of the Supreme Court. Who is to be proud — Katju or the Supreme Court for its open offer and willingness to stand scrutiny in open court in a debate with a blogger who slammed the Sowmya verdict?

What has the Supreme Court summoned Katju for?  They say it is for a debate between the SC Bench and Justice Markandey Katju (Retd)? If so, what would be the format? Would Katju be required to file his written submissions and then orally be permitted to debate? Or should he stand in the dock and answer posers from the Bench? Or would he be allowed the benefit of a lawyer to represent, possibly the elder maverick statesman, Ram Jethmalini. What a mouth watering prospect that would be? Who can say Supreme Court proceedings have to be dull and drab? “The nation wants to know” Arnab may be next in line for his daily pronouncements. That would be some summon to look forward to.

The review petitions filed by Sowmya's mother and the state of Kerala shall have to wait to be heard. The top court has made it clear that they would accord first priority to dispose of Katju's misgivings and then deal with the review petitions. Can anyone please say whether the debate would legally partake the character of a review petition?  Or would it be an exposition heard from an expert under Sec.45 of Evidence Act? What pray would be consequences and result of the debate, legally, that is.

The more important question, if Katju saab has been summoned for a debate with the top court, there has to be a referee or umpire to decide and pronounce as to who won it. Remember the classical Mandana Misra v Adi Sankarar debate, which was presided over by none other than Misra's wife Bharathi. Would and can Katju question the summons since the SC had called him for a debate — the same Bench cannot sit in judgment and hence both should argue before an independent arbiter in the Bharathi mould.

Surely, those  who follow Katju blog know how learned he is in our scriptures and  sastras  and surely he will not let slip this jurisdictional issue as preliminary issue - much like the unconstitutionality argu-ments suggested  by him to  his recent client BCCI. No one is unaware of the 'surgical strike' the Supreme Court has performed on BCCI and its aftermath and inability of BCCI to even deny it.
Interestingly, the order of the Supreme Court has chosen to extract the entire blogpost — not a privilege bestowed on anyone before or may be hereinafter — and what a fantastic advertisement for Katju Blog.

On reading  the entire post , one fears  that what may have tickled the Supreme Court was the  thrust of  the retired judge's content — that the intellectual calibre of the Judges now in office has suffered a precipitous fall and not necessarily the 'grievous error' comment. The imputation is direct and not even an innuendo. It appears that Katju can also await  a surgical strike,  which in many people's opinion may be long overdue.

(The writer is practising advocate at the Madras High Court)