‘Not a healthy precedent’

THE stand-off between Justice C.S. Karnan and the Supreme Court has brought to the fore many issues such as that of judicial accountability and scrutiny, evocation of the contempt law, and the gag on the media. D. Raja, national secretary of the Communist Party of India, spoke to Frontline on its ramifications. Excerpts:

What are your views on the stand-off between Justice Karnan and the Supreme Court?

It has exposed the lapses and weaknesses in the judiciary, including that of corruption, accountability and lack of adequate social representation. The judiciary should be inclusive without prejudice. It was the Left parties that pushed for the National Judicial Appointments Commission. When India had helped South Africa frame its Judicial Appointments Commission, it is high time we had our own NJAC.

Justice Karnan’s removal from his judicial duties and conviction have raised questions of constitutional propriety. In his letters to the President and the Prime Minister, he has also referred to the infringement of the jurisdiction of Parliament.

The Constitution is clear on the procedures of removal of members of the higher judiciary. A judge can be removed only by impeachment under Article 124 (4) of the Constitution on grounds of proven misbehaviour and incapacity. According to the Judges (Inquiry) Act, 1968, a complaint can be made by a resolution of 100 members of the Lok Sabha or 50 members of the Rajya Sabha. The motion is submitted to the presiding officers of the Houses concerned, following which an inquiry committee is set up to look into the complaint. The committee comprises members of the judiciary and may include an independent agency as well.

An opinion prevails that Justice Karnan may have trivialised the issue of caste discrimination by writing to the National Commission for Scheduled Castes. There is also a view that the Supreme Court could have taken cognisance of his allegations and investigated the same.

The issue is not just about Justice Karnan. Whether the Supreme Court has acted in accordance with the Constitution has been raised in the public domain. The issue should not be personalised in terms of emphasising his regional or caste identity. That issue remains—that of addressing social representation so that the judiciary is above prejudice and bias.

The collegium system of appointing judges is opaque. The issue of how to ensure a fair selection procedure in appointments is a serious one. There is some discussion going on between the Central government and the Supreme Court on a memorandum of procedure for the appointment of judges. Parliament is not privy to it, but some talks are on, according to Ravi Shankar Prasad, Union Minister for Law and Justice. He said so in Parliament in response to a question.

As for the charges levelled by Justice Karnan, the Supreme Court could have either initiated an inquiry or approached the President or Parliament. On the issue of contempt of court, we have had jurists of eminence like the late Justice V.R. Krishna Iyer, who wrote in The Hindu that “veiled violence through ‘contempt threat’ stultifies free speech and mocks at fearless justice”.

What do you see as the way forward?

There should be a dialectical link between law and justice. Justice should have the backing of law. Laws will always have a bias as they are part of a superstructure defined by the ruling classes. But justice cannot afford to have a bias.

If there was an issue about Justice Karnan’s behaviour or functions, they should have been investigated. How can the Supreme Court sentence him and at the same time pass an order for his mental examination? In any case, the constitutional route should have been adopted. It is not a healthy precedent.

The gag order [on the media] is equally mystifying. It is for the people to judge. There is a perception that when the judiciary is attacked, courts act swiftly. There are so many contempt petitions pending in courts against State governments and even the Central government. There are 1,626 contempt cases pending against the Tamil Nadu government as revealed by a Right to Information application.

The question also arises as to who does Justice Karnan appeal to? He has not been interrogated; should he go to jail? These issues have to be dealt with in legal jurisprudence. And had the matter reached Parliament, it would have given MPs an opportunity to discuss the larger issues confronting the Indian judiciary.