Opinion

Another first in judicial history

Print edition : June 10, 2017

Justice K. Chandru.

THERE have been judges in the past with questionable background and unbecoming behaviour. But in all of those cases, the matter had remained within the judiciary. Justice Karnan has brought such behaviour to the open. Justice Karnan is a standing monument to the fact that the collegium system of judges’ appointment is not foolproof. How did a person of such qualities become a judge in the first place? The process of selection involves the High Court collegium, the Supreme Court collegium, the office of the President and the Union government which does the background check. He was appointed as a judge in 2009 and within two years he was confirmed as a permanent judge. We should assume that he had escaped any proper scrutiny of his background.

Once a person is appointed, the only intervention possible is through impeachment by Parliament, which is a complex and long-drawn-out process. Unlike many past instances of complaints against judges, which remained in the realm of gossip in the corridors of the courts, in this case you have specific complaints made against the conduct of Justice Karnan by three successive Chief Justices who served in the Madras High Court and were later elevated to the Supreme Court. This apart, his own conduct, where he had abused fellow judges in the media and passed orders that have no basis in law, and intervened in court proceedings, all these went unnoticed by four successive Chief Justices of the Supreme Court.

Further, 21 judges of the Madras High Court have written specific complaints against Justice Karnan to the Supreme Court. At least at that stage the Supreme Court should have intervened and conducted an in-house inquiry to take further action against him. The Supreme Court failed miserably in using the in-house procedure evolved by it.

For any investigation to begin, especially on sitting judges, there has to be prima facie material available. Let us also examine the conduct of Justice Karnan who is making these allegations. When he addressed the media after the Supreme Court issued a bailable warrant against him, standing next to him was a person convicted by courts for criminal contempt and who is known to have a dubious background. How will one expect any confidence in the accusations made by a judge who has no problems in being in the company of convicted criminals?

Another major problem exposes the inadequacies of the system. How can transfer be the solution for such misconduct? If a person is corrupt or is mentally imbalanced, will transferring him solve the problem? Justice Karnan is the embodiment of all that is wrong in judicial appointments and judicial accountability.

During the hearing on the challenge against the National Judicial Appointments Commission law, which sought to replace the current system of collegium appointments, the judges asked the Attorney General if he could point out one specific instance of a bad appointment. By doing so, the judges diluted the arguments against elements like Justice Karnan.

There were written complaints against him not by pedestrians but by Chief Justices of High Courts. What prevented the Supreme Court from conducting an in-house investigation or recommendation for impeachment?

Caste prejudice can be open or concealed. Unless a person who suffers expresses himself, others cannot feel for him. But, given the kind of powers a judge wields and the kind of respect you have in society by virtue of that position, it is difficult for [such] people to be insulted openly. Justice Karnan has said that fellow judges insulted him because he was a Dalit. But from the nature of his allegations, I feel it was done to garner sympathy. He has not listed out any incident. He wanted specific portfolios allotted to him in the Madras High Court. Why should a judge seek any specific portfolio knowing well that such allotment is done through a roster system? The Chief Justice, who refused, was abused with the choicest of words. Where does the question of Dalit come in here?

Many questions are raised in the public realm, implying that a sitting judge cannot be punished for contempt. Except for the post of President and Governors of States, there are no immunities granted for any illegal action. Maybe after a sitting judge is convicted for criminal contempt, Parliament may take steps to impeach such a judge on account of proved misbehaviour.

In this country, contempt laws are used to browbeat anyone who dares to criticise the judiciary. You cannot have respect by command in a democracy. For example, take the case of former Supreme Court judge Markandey Katju. It is unpardonable what the Supreme Court did to him in the recent contempt proceedings. The judiciary has to inspire confidence by its actions and not through the contempt law. I think such a law is unnecessary in a democracy.

Justice K. Chandru, retired judge of the Madras High Court. (As told to Ilangovan Rajasekaran.)

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