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Judge the system, not the judge

That a person like Justice Karnan was nominated by the Collegium exposes serious flaws in the system

Published: 25th May 2017 04:00 AM  |   Last Updated: 24th May 2017 11:29 PM   |  A+A-

The Justice Karnan episode is most unfortunate for the system. It raises many questions to which answers cannot easily be found. History was created when suo motu contempt proceedings were initiated against a sitting judge of a High Court. He was later convicted and sentenced to prison. In the process, the greatest victim has been the judicial system. When Justice Karnan was a judge of the Madras High Court, he made serious allegations of corruption against his brother judges. He barged into the Chief Justice’s courtroom shouting slogans.

Then, he was transferred to the Calcutta High Court. He even passed a judicial order staying his transfer. All this was unbecoming of a High Court judge. Later he joined the Calcutta High Court. But all these actions were not even taken note of.
Earlier this year, Justice Karnan wrote to the prime minister alleging corruption against some judges of the Supreme Court and the High Court.

After this, a special seven-judge Bench comprising the seniormost judges of the Supreme Court was constituted and suo motu proceedings for contempt were initiated against him. The Attorney General strongly advocated stringent action. It was also ordered that he should not discharge any judicial or administrative functions. But Justice Karnan failed to appear before the court. Then a warrant was issued for securing his presence.

He then appeared and questioned the Supreme Court’s jurisdiction regarding action against him, reiterating that he was being targeted because he was a Dalit. Quite strangely he purported to hold court at his residence and pass several orders against the Supreme Court judges (CJI included), including sentencing them to imprisonment. It is at this stage that the special Bench unanimously found him guilty of the gravest contempt against the judiciary and sentenced him to six months imprisonment and also restrained the media from publishing any of his statements.

What emerges from all these misadventures?
It is quite strange and incomprehensible that in spite of his barging into and shouting in the Chief Justice’s courtroom which is clearly contempt in the face of the court, no action was initiated against him. Neither was action for misconduct—for removal—set in motion. Even when he purported to stay his transfer order, nothing was done. Later following his letter to the prime minister levelling corruption charges against judges of the superior judiciary, the Supreme Court in an unprecedented move initiated suo motu contempt action against him and also deprived him of judicial and administrative work as a judge. It is highly suspect whether his actions for which proceedings were initiated amounted to contempt. This issue remains unaddressed. It is a slippery slope.

In fact, the Supreme Court has no supervisory or disciplinary jurisdiction over the High Courts. It has only appellate jurisdiction in judicial matters. The High Courts are not subordinate to the Supreme Court. Hence the Supreme Court ordering that the judge should not discharge any judicial or administrative work is constitutionally suspect and does not seem to pass muster. That is the sole function and prerogative of the concerned Chief Justice as master of the roster. In 1990, there have been instances when judges both in the Supreme Court and the High Court were denied any work. But that was at the initiation of the concerned Chief Justice on the administrative side. The Supreme Court seems to have gone overboard.

Then comes the worst stage of the sordid drama. What may not have been contempt when proceedings were initiated, can amount to contempt by reason of certain developments. Contempt may have been committed during the pendency of the proceedings. The judge declined to have himself medically examined as ordered by the Supreme Court on the plea that he was mentally disturbed and not stable. He purported to hold the Supreme Court judges as accused, found them guilty of various offences and sentenced them to prison. This appears to be a clear case of contempt of the Supreme Court following which the court found him guilty of contempt and sentenced him to six months in prison. Perhaps the court was left with no option. But issues arise and remain unanswered.

Justice Karnan’s various actions undoubtedly amount to gross misconduct. But conduct of a judge is not to be discussed anywhere except in Parliament on a motion for his removal. No motion for his removal was initiated but his actions and conduct were the subject matter of  discussion. This was definitely a case to be referred to Parliament for the judge’s impeachment. Even if he is guilty of contempt, the question remains whether the procedure for pronouncement of guilt and punishment has been followed. It is doubtful whether this has been done fairly.

While holding him guilty of contempt the order does not say what is the contempt committed. Reasons are to follow but a detailed order has not come out as yet. The gag order against the media is quite unfortunate. The Court has not lived up to its reputation as the custodian of our fundamental freedoms. There is no necessity for such direction. It appears to be unwarranted and unconstitutional.

The more important and disturbing issue is regarding the system of judicial appointments to the superior judiciary. Justice  Karnan did not appoint himself. That a person like him guilty of misdemeanours can be a High Court judge exposes the weaknesses in the system and calls for a serious review of the process of appointment. The system and the people who made him a judge are answerable. The ills of the Collegium system which has been emphatically and enthusiastically entrenched by the Court are brought home with a strange poignancy. We are painfully reminded of Macaulay’s admonition—reform that you may preserve.

V Sudhish Pai
An expert on the Indian Constitution
Email: vsudhishpai@gmail.com

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