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Error of judgement

The selection process that led to Justice Karnan becoming a judge needs revisiting

Justice CS Karnan, Justice Karnan, Karnan contempt of court, SC Karnan, Karnan moves SC, judicial system, Karnan medical exam, Indian Express Justice CS Karnan. (File Photo)

The saga of Justice C.S. Karnan reached its low point on May 9 with the Supreme Court sentencing him to six months for contempt. The merit of initiating suo motu contempt proceedings by the Supreme Court and the orders, issuing warrants and directions for medical examination, have been debated enough. But I am more concerned with the fundamental issues that have emerged and require serious thought by every democratic institution.

Justice demands that lawyers, litigants and the general public have utmost confidence and trust in the judges and the courts over which they preside. Courts are the refuge for citizens and individuals for redressal of their rights and to protect them from arbitrary and unlawful actions. Hence, judges are required to adopt a higher standard of rectitude in their behaviour to continue to inspire confidence in seekers of justice — the people at large.

That this episode has caused great damage to the justice delivery system and the higher judiciary is reflected in the media having had a field day reporting the crossfire of orders. Though the story has really worked itself out, the Supreme Court has, on May 9, forbidden the media from reporting any furthers “orders” or statements given by Justice Karnan.

My first concern is the need to re-evaluate the selection process that led to the appointment of Justice Karnan. Clearly, the selection process omitted effective consideration of his fitness to act as a judge. This failure is not of the collegium alone that recommended him but it appears that no red flags were raised by the agencies that are tasked with background checks and security clearance. Normally, judges of high courts are appointed as additional judges, first, and then as a permanent judge. In this case, noting his conduct since 2011, Justice Karnan, whose initial appointment was two years ago, appears to have been unfit even then. Yet, he slipped through the cracks, making it clear that scrutiny was inadequate. In the 2010/2011 proceedings for the removal of Soumitra Sen of the Calcutta High Court, it became apparent that even at the time of Justice Sen’s elevation, material facts of his being custodian of funds as a Court Receiver were not disclosed by him and escaped consideration.

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The Supreme Court, in SCAORA v. Union case (1993), recorded the need for an “independent and impartial judiciary manned by the persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill will or affection.” The Sixth Conference of the Chief Justices of Asia and the Pacific adopting the Statement of Principles on Independence of the Judiciary prescribed that “Judges shall uphold the integrity and independence of the Judiciary by avoiding impropriety and the appearance of impropriety in all their activities.”

Such activities are both inside the court and outside it. Justice Karnan was appointed as an additional judge in 2009. He was confirmed as a permanent judge in 2011. In the same year, in an unprecedented move, addressing a press conference from his chambers he claimed caste-based harassment by his brother judges and wrote to the National Commission for Scheduled Castes. From 2014 onwards, his conduct has kept him in the news; this is completely dissonant with the principle that judges should be heard of through their judgments alone.

Article 217 of the Constitution provides due protection for the appointment of high court judges and a stringent procedure for the removal of a high court judge. The procedure to be followed for removal is through inquiry by a Parliament-appointed committee. The Judges Inquiry Act, 1968 regulates the process of removal of judges. Proceedings before the committee appointed under this act are unique in the manner of procedure and safeguards. The mandate of such a committee is to investigate the misbehaviour or incapacity of a judge.

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Finding that there needs to be action against judges who do not follow “universally accepted values”, the Supreme Court on December 15, 1999 adopted the Report of the Committee on In-House Procedure to take suitable remedial action against erring judges. This procedure was created to deal with allegations against a judge pertaining to the discharge of his judicial functions.

In Justice Karnan’s case, this in-house procedure appears not to have been resorted to. The in-house procedure provides for the CJI to advise a judge to resign or seek voluntary retirement. If the judge does not resign or retire, the chief justice (of the high court) can be advised not to allocate any judicial work, and the matter brought to the notice of the president and prime minister.

Whether Justice Karnan’s conduct was brought to the notice of the president or prime minister is not in the public domain. But his actions have received extensive media coverage. The power to remove a judge is vested with the Members of Parliament (in view of Articles 124 and 217 of the Constitution). They may move a motion for the removal of a judge on grounds of proved misbehaviour and/or incapacity, which remedy was available, but not (yet) exercised.

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Justice Karnan is at the end of his tenure and the contempt proceedings against him stand concluded. However, for the future we need serious contemplation from all limbs of our democracy to prevent such a situation and to ensure that only those of “sterling quality, character and courage” occupy the high constitutional office of a judge.

First published on: 12-05-2017 at 05:19:19 am
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