Introduction
In an unprecedented order, the Supreme Court of India on 9th May, 2017 directed that Justice Karnan be imprisoned for six months for contempt of court. A seven-judge Constitution Bench headed by the Hon’ble Chief Justice J. S. Khehar was of the view that the Calcutta High Court judge “committed contempt of court, and of the judiciary of the gravest nature.”[1] The said order was a result of the contempt proceedings initiated against him by the Apex Court for denigrating the judicial institution by making allegations of corruption against several judges; expressed by him in a scathing letter to the Prime Minister of India.[2]
This was the first time in the history of Indian judiciary that a sitting High Court judge was sent to jail by the Supreme Court on charges of contempt.[3] The instant case highlights a burning issue that the framers of the Constitution did not foresee: How do you discipline a judge short of impeachment?
This article highlights the significance of this case and its implications on the higher judiciary. It puts forth the shortcomings of the present system of appointment and removal of judges, and gives suggestions to improve the same. Evidently, the process of judicial appointments needs to be reviewed and judges have to be made accountable to the public.
A Pattern of Judicial Indiscipline
In the anecdotes of aberrant behavior of judges, the name of Justice C.S. Karnan is the most significant one. The defiant judge has a long history of alleging corruption against some judges while accusing a few others of caste discrimination against him. Often, he has used his caste to take complaints against his fellow judges, right from the Chief Justices to the National Commission for Scheduled Castes.[4] In the past, he has passed judicial orders on matters pertaining to the selection of judges, even after being barred by a Division Bench from hearing them. He had once barged into a court during a hearing, and on another occasion into the chamber of the Madras High Court Chief Justice, “hurling a volley of invectives”.[5] His ‘order’ to summon the Chief Justice of India and six other judges of the Supreme Court (who were collectively hearing the contempt proceedings against him) to his ‘residential court’ to face punishment under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, was an unacceptable affront to the Apex Court’s authority.[6]
Although Justice Karnan was transferred to another High Court, was tried for contempt, was denied judicial work and was subjected to public criticism — nothing seemed to have restrained him.[7] His conduct goes against the assurance given to the Chief Justice of India in 2016. He claimed to foster a “harmonious attitude towards one and all”. At that time, he had expressed regret for passing a suo motu order, staying his own transfer from the Madras High Court to the Calcutta High Court while admitting that it was an “erroneous order” passed due to “mental frustration, resulting in loss of mental balance”.[8]
Perhaps, in his curious case, the only option left was impeachment. However, this is a political process which involves the Parliament and it is something that Justice Karnan may have wanted himself as he could use his caste card and politicize the entire issue.
Significance of the Contempt Saga
Justice Karnan’s case is a colossal example of the fact that the collegium system of judges’ appointment, under which judges appoint other judges, needs to be reconsidered.
How did a person of such qualities become a judge in the first place? The process of selection involves the office of the President, the Supreme Court collegium, the High Court collegium and the Union government, which does the ‘background check’. Justice Karnan was appointed as a judge in 2009 and within a year was elevated to a permanent judge.[9] As with other judicial appointments, there is no official record of the basis on which he was considered fit for appointment as a High Court judge and whether any material against his elevation was considered or rejected.
In addition, the Constitution of India does not prescribe any criteria beyond ten years of legal practice and citizenship for a lawyer to be appointed as a High Court judge.[10] Up until 1971, the recommendation of the Chief Justice of India was treated as gospel by the government. This was amended in the 1980s when the government tried to extend its control over the appointment process by seeking more power to recommend judges to the higher judiciary.
A significant change occurred in 1993 with the Supreme Court’s judgment in Supreme Court Advocates-on-Record Association v. Union of India,[11] empowering the judiciary to appoint judges. The appointment process, now, essentially follows the recommendation by five senior most Supreme Court judges, including the Chief Justice of India. This is binding on the government who then issues the formal order of appointment.
Known as the ‘collegium method of appointment’, the process has resulted in dissatisfaction in the legal community due to lack of transparency.[12] It is pertinent to note here that the Parliament’s attempt of bringing change to the collegium system by replacing it with the National Judicial Appointments Commission was struck down by the Supreme Court in 2015 as it was considered to be in violation of the Constitution’s basic structure.[13]
After the appointment, there is no scope for disciplining a defiant or erring judge. The only intervention possible is through impeachment by Parliament, which is a complex and long-drawn process. Whatever “misbehaviour” a judge is alleged to have committed should be serious enough for Parliament to take notice before removing the said judge from office. Even those with legitimate grievances against a judge have little recourse from the judiciary itself, or any other institution. Multiple judges of High Courts and the Supreme Court have faced accusations of all sorts, but hardly any action could be taken against them. In 2011, two High Court judges, Justice P. D. Dinakaran and Justice Soumitra Sen, faced impeachment proceedings for corruption and abuse of office, but resigned before removal. [14] Later in 2016, the Supreme Court initiated contempt proceedings against former judge Markandey Katju for his ill-thought-out comments against judges.[15]
Thus, the contempt saga of Justice Karnan highlights a larger problem faced by the Indian judiciary: that of transparency and credibility.
Conclusion and Suggestions
It will be wrong to term the contempt saga of Justice Karnan as ‘curious’. It is not only ‘ignominious’ but has also brought to light the inability of the judiciary in keeping its own house in order. The contempt case leaves us inter alia with the following questions: What is to be done when the Parliament is not inclined to act on serious misbehavior? Is it right for the apex court to sit and hear such breaches of judicial indiscipline? How does one ensure transparency and credibility in the judicial system?
At present, impeachment is the only way to remove a judge, but as mentioned above, it is a long drawn, complex process and is often politicized. However, there are certain informal measures that can be taken against an erring judge. He could be relieved of all judicial work, he could be given different cases to handle, or he could be transferred to another high court.[16] The first two can be done by the Chief Justice in charge of the High Court, while the last requires the cooperation of the government. However, these are all temporary measures and do not eradicate the larger problem, which is exactly why a bench of seven judges of the Supreme Court had to frame contempt charges against Justice Karnan, a sitting high court judge. Perhaps that was the only remedy available to deal with such an extreme case of judicial indiscipline.
An important take away from the instant case is the importance of transparency in judicial appointments. Transparency must be the sine qua non for appointments as well as elevations. Judicial appointments should be made on the basis of applications or proposals that lay down a minimum eligibility criteria for consideration for the post. Such an application must also make complete disclosure of relationships of applicants to sitting or retired judges and legal practitioners to avoid any kind of bias. This system is followed in countries like the United Kingdom and Australia, and, to some extent, is followed in India across various High Courts for designating Senior Advocates.[17] The Parliament should also bring about reforms to provide a uniform retirement age for the judges of the Supreme Court and the High Courts, so that the present practice of some judges trying to be in the good books of the existing or prospective members of collegiums in the Supreme Court is avoided. A Committee of Judges should be constituted in the Supreme Court and various High Courts to deal with instances of judicial indiscipline and abuse of power in the same court and subordinate courts. The said committee must be empowered to take actions and measures against erring judges, such as reduction of their emoluments.
However, these are only a few of the various measures that can be taken to ensure transparency and credibility of the judiciary, and also to prevent the rise of another Karnan, J.
–Shivam Jain Kakadia, V-IV
END NOTES
[1] Suo Motu Contempt Petition (C) No. 1 of 2017 (In Re: Sri Justice C. S. Karnan)
[2] Ushinor Majumdar “All You Need to About Justice C.S. Karnan, Who Now Faces Contempt Charge By Supreme Court“, Outlook India, February 8, 2017. http://www.outlookindia.com/website/story/all-you-need-to-know-about-justice-cs-karnan-who-now-faces-contempt-charge-by-su/297858 (last accessed on June 20, 2017)
[3]PTI, “Justice Karnan sentenced to 6 months imprisonment”, The Hindu Business Line, May 9, 2017. http://www.thehindubusinessonline.com/news/justice-karnan-sentenced-to-6-months-imprisonment/article9687595.ece (last accessed on June 20, 2017)
[4] Supra note 2
[5] PTI, “Not only Karnan, list of judges courting controversy too long”, The Economic Times, June 18, 2017.
http://economictimes.indiatimes.com/news/politics-and-nation/not-only-karnan-list-of-judges-courting-controversy-too-long/articleshow/59201868.cms (last accessed on June 20, 2017)
[6] Tanmay Chatterjee, “Justice Karnan summons CJI and six SC judges to his residence”, Hindustan Times, April 29, 2017. http://www.hindustantimes.com/kolkata/justice-karnan-summons-cji-and-six-sc-judges-to-his-residence/story-jhra3xNh5H9oRIr4RGPbYP.html (last accessed on June 20, 2017)
[7] K. Venkataramanan, “Karnan: a long history of confrontation with colleagues”, The Hindu, June 21, 2017. http://www.thehindu.com/news/national/karnan-a-long-history-of-confrontation-with-colleagues/article19120825.ece (last accessed on June 23, 2017)
[8] Krishnadas Rajagopal, “Passed erroneous order due to mental frustration: Karnan”, The Hindu, February 23, 2016. http://www.thehindu.com/news/national/had-issued-erroneous-order-due-to-frustration-justice-karnan/article8272365.ece (last accessed on June 20, 2017)
[9] Supra note 2
[10] The appointment of Judges of the Supreme Court and their removal are governed by Article 124 of the Constitution of India. Articles 125 to 129 provide for certain incidental matters. The appointment and removal of the Judges of the High Courts are governed by Article 217. Articles 218 to 221 and 223 to 224A provide for certain matters incidental thereto. Article 222 provides for transfer of Judges from one High Court to another.
[11] 1993 (4) SCC 441. The nine-Judge Bench (with majority of seven) not only overruled S. P. Gupta v. Union of India (AIR 1982 SC 149) but also devised a specific procedure for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary”.
[12] Apar Gupta, “NJAC judgment: Why the collegium system needs to go”, Business Standard, October 17, 2017. http://www.business-standard.com/article/opinion/njac-judgment-why-the-collegium-system-needs-to-go-115101700125_1.html (last accessed on June 19, 2017)
[13] Supreme Court Advocates-on-Record Association v. Union of India, (2015) 6 SCC 408
[14] The Hindu Net Desk, “List of judges who faced impeachment proceedings”, The Hindu, May 25, 2017. http://www.hindu.com/news/national/list-list-of-judges-who-faced-impeachment-proceedings/article18578156.ece (last accessed on June 19, 2017)
[15] Supra note 5
[16] Supra note 10
[17] For instance, the Bombay High Court has laid down rules for designation of Advocates as Senior Advocates under S. 16(2) of the Advocates Act, 1961. A Committee of Judges reviews the Proposal Form (submitted by a Senior Advocate) along with the Bio-data of the candidate, and the designation is based on the ability, experience and standing at the Bar or special knowledge or experience in law.