SC Dents Its Credibility By Tolerating Recalcitrants Like Justice CS Karnan 

The judiciary’s efforts to retain power without accountability – as evident in the National Judicial Appointments Tribunal verdict, where it chose to override the will of the people by striking down the law – is now coming back to bite it in the butt.

On the mistaken, or self-serving, notion that judges can only be appointed by themselves to retain independence (through the opaque collegium), the Supreme Court has essentially reduced its independence, for it will now be accountable for everything that happens in the legal system, even if it is not its fault. When you are accountable only to yourself, you are responsible for everything that goes wrong in the system.

A case in point is Justice CS Karnan, a recalcitrant judge of the Madras High Court who created legal chaos in 2015 when he repeatedly flouted the orders of the court’s Chief Justice, Sanjay Kaul. At one stage, he even stayed the order for his own transfer to the Calcutta High Court. A bit later, when it seemed like the Supreme Court was losing patience with him, he agreed to the transfer, but also chose to challenge it in the apex court. At another point, he even threatened to file a case of against the Madras High Court Chief Justice under the law to prevent atrocities against SC/ST. (Read here). By choosing to hear the case against its own transfer of Justice Karnan, the apex court gave him too much of leeway. In a sense, Justice Karnan is also challenging the collegium’s rights to transfer him.

Clearly, Justice Karnan has used the Dalit card to cock a snook at the law that he is supposed to administer impartially.

Belatedly, the Supreme Court on Tuesday (7 February) decided to file contempt of court proceedings against this judge, who has flouted every guideline of decorous behaviour.

The court has set up a seven-judge constitutional bench headed by Chief Justice JS Khehar to decide the Karnan case, but even assuming it does decide he is in contempt, the constitution does not allow the judiciary to sack judges. Upper judiciary judges can only be removed by impeachment through a two-thirds majority in parliament. At best, the bench can recommend to parliament to impeach Justice Karnan, but who knows, in parliament he might well play his Dalit card to the political gallery, and paint himself as a victim of caste prejudice, which is manifestly not the case. It is not clear that politicians will be bold enough to impeach him when accused of caste prejudice. The BJP, wooing the Dalit vote, may well be chary of sacking him, and so will other parties. When even the court has given Justice Karnan such a long rope, what is the chance that parliament will not do so?

The only other way for the Supreme Court to get rid of him is by initiating his ouster, but this would be a huge misuse of the law. If the court has already bent the constitution to suggest that it is the collegium that will appoint judges, can it, by the same token, decide that it can recommend the sacking of judges? One can’t rule that out, since this is a constitutional bench.

The reality is that the court has failed to discipline either the upper or lower judiciary, and not least the lawyer fraternity – who are often a law unto themselves. In Chennai, lawyers have in the past agitated against the Chief Justice, and one report suggested that gangs of lawyers are running a racket to extort money from clients.

Since the judiciary has chosen to be its own final selection panel and arbiter, blame for law-breaking and indiscipline in the judiciary rests with it. How can it claim to be independent when it can’t discipline its own flock, both in the judiciary and among the legal fraternity? Isn’t it in the judiciary’s own interest important to have an arm’s-length distance from judicial appointments and removals? Moreover, if judges like CS Karnan can easily slip through the collegium system, what is its credibility?

Three points seem self-evident.

One, the judiciary should accept an independent body to recommend and suggest judicial transfers, no doubt with the concurrence of the top judges.

Two, we badly need a judicial accountability bill, both to set norms for judicial behaviour and to recommend actions against recalcitrants like Justice Karnan.

Three, impeachment by parliament should not be the only way to remove crooked and rogue judges. An intermediary stage of vetting by a non-political body of jurists will help the judiciary distance itself from the consequences of such decisions, which may have political ramifications.On the mistaken, or self-serving, notion that judges can only be appointed by themselves to retain independence (through the opaque collegium), the Supreme Court has essentially reduced its independence, for it will now be accountable for everything that happens in the legal system, even if it is not its fault. When you are accountable only to yourself, you are responsible for everything that goes wrong in the system.