What the row over Justice Karnan tells us about the judiciary’s resistance to accountability

Justice CS Karnan of the Calcutta High Court has hit the headlines regularly since February, when the Supreme Court had slapped contempt charges on him for degrading the judiciary and making allegations of corruption against several judges, whom he named in an open letter to the prime minister. This was believed to be the first time a contempt notice was issued to sitting judge.

On Monday evening, he sentenced the Chief Justice of India and six Supreme Court judges to five years of rigorous imprisonment after finding them guilty under Scheduled Castes/Scheduled Tribes Atrocities Act. Karnan accused them of discriminating against him for being from the Dalit community.

On May 1, he refused to undergo a psychological evaluation that the Supreme Court had ordered him to, and passed a bizarre order directing the Air Control Authority to prevent Supreme Court judges from travelling abroad as they would “spread the virus of caste discrimination”.

Karnan had also made news in May 2015, when he initiated contempt proceedings – which the Supreme Court subsequently stayed – against his superior, the former Chief Justice of the Madras High Court, Sanjay Kaul. Karnan, who was serving at the Madras High Court at the time, accused Justice Kaul of interfering in his work and discriminating against him.

Karnan has also alleged that a fellow judge harassed an intern and accused another of caste-based discrimination without providing a shred of evidence.

So, how did Karnan slip through the cracks and become a judge of the Madras High Court? And why is he still a judge, now at the Calcutta High Court, despite numerous instances of conduct unbecoming of the post?

The blame lies squarely with the judiciary which, in addition to systematically dismantling constitutional safeguards pertaining to the appointment of senior judges, has resisted efforts by the legislature to hold judges accountable for their actions.

Closed doors

When he was the Chief Justice of the Madras High Court, Justice AK Ganguly headed a three-member panel of judges, known as a collegium, which recommended Karnan’s name to the Chief Justice of India for appointment as a high court judge. As part of the collegium process , in which judges appoint other judges, the High Court collegium sends its recommendation to the Supreme Court collegium, which then approaches the President and Union government, which, in most cases, has to rubber-stamp the appointment. Karnan’s appointment was cleared in 2009.

In the wake of many controversies, the judges on the High Court collegium opened up about Karnan’s nomination. Justice PK Mishra said it was Justice Ganguly who proposed Karnan’s name and he had never heard of him before that. He also said he was “extremely sorry” for being a part of the collegium that recommended Karnan.

Justice Ganguly said on record that Karnan had never appeared before him in a case. As to why he recommended Karnan, Ganguly told The Hindu last year that he did not “remember (how his name came up), after such a long time, I was there in 2008 – I don’t remember all the details.”

Justice Balakrishnan, the Chief Justice of India in 2009, on whose recommendation the president issued the order confirming Karnan’s appointment, absolved himself of any blame, saying that the chief justices of High Courts “propose the names and we [the Supreme Court collegium] go by that. I did not make any specific inquiry about him [Karnan].”

Those who are unfamiliar with the opacity of the process of judicial appointments might wonder why the the minutes of the Supreme Court and High Court collegium meetings were not recorded. There is no such record because the collegium is nothing more than a self-interested cabal, a bunch of (mostly) middle-aged men meeting in secret over tea and biscuits, with no written record of their deliberations and absolutely no participation from the executive or the legislature, the two elected branches of government.

Complicated processes

If the appointment of Justice Karnan is a damning indictment of the “judges appoint judges” system, the fact that he has been able to continue serving as a judge highlights the inadequacies of the current procedure for disciplining and removing errant members of the judiciary.

Under Article 217 of the Constitution, a High Court judge may be removed on the order of the President on grounds of proven misbehaviour or incapacity. But, Article 124 , which elaborates on the removal process, says that the President can only exercise this power after both houses of Parliament present an “address” before him supporting the removal of the judge in question. There’s also the added rider that the address must be supported by at least two-thirds of the present and voting members, in both houses.

Moreover, the Parliament may make this address only if the accusations against the judge are proven before committee constituted under the Judges (Inquiry) Act, 1968. The committee has to comprise one member each chosen by the Supreme Court, the High Court and the Speaker or Chairman of the Parliament houses.

For such an inquiry committee to be constituted under the Act, at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha must give a notice to the Speaker or the Chairman seeking a motion to present the address to the President. The motion must then be put on hold till the committee is constituted and completes its inquiry.

That no such notice that could set the removal process into motion with regard to Karnan was forthcoming is indicative of the lack of political will for his removal.

Unimpeachable and unaccountable

Given that Karnan has claimed to be a victim of caste discrimination, his impeachment by Parliament was always a political non-starter. However, the fact that Parliament has unsuccessfully attempted to impeach judges on three previous occasions could also be a reason for their reluctance to move against Karnan.

In 1993, a committee set up under the Judges (Inquiry) Act submitted a report to the Lok Sabha stating that allegations of corruption against Supreme Court Judge V Ramaswami had been proved. When the Lok Sabha took up the motion for his removal, the ruling Congress party abstained from voting. Justice Ramaswami’s ties to the Congress – his son was an MLA from the party – ensured his survival.

Almost two decades later, in 2011, Justice Soumitra Sen of the Calcutta High Court resigned after the Rajya Sabha voted for his impeachment, before the Lok Sabha could take up the matter. Similarly, Justice PD Dinakaran of the Sikkim High Court resigned when a committee was set up by the Rajya Sabha chairman to probe allegations of land-grabbing against him.

Given the deplorable conduct of Justices Sen and Dinakaran and considering that not a single judge had been impeached in the six decades since Independence, the Judicial Standards and Accountability Bill was passed by the Lok Sabha in 2012. The Bill provided for the establishment of a National Judicial Oversight Committee, comprising current and former judges and one eminent person nominated by the President, which would look into complaints of misbehaviour or incapacity against judges.

According to the legislation, the complaints, which could be made by any citizen, would first be screened by a scrutiny panel of the constituted in the Supreme Court or the High Court concerned, as the case may be. If the panel was satisfied that there were sufficient grounds to proceed with an inquiry against the judge in question, the complaint would be forwarded to the Judicial Oversight Committee for further investigation.

If the allegations against the judge were proved, the Committee could recommend the judge’s prosecution if he had committed an offence and/or ask him to resign, failing which it could advise the President to ask Parliament to begin the process of impeachment. However, following objections from former and current members of the judiciary, the Bill was not passed by the Rajya Sabha and lapsed in 2014, when the 15th Lok Sabha was dissolved after the general elections that year.

If the Bill had seen the light of day, the likes of Justice Karnan could have been disciplined, censured or removed. Instead, the only sanction that has been imposed on him is what is called a “minor measure” in judicial parlance: he was transferred from Madras High Court to the Calcutta High Court in 2016 and barred from duty the Supreme Court took up the contempt charges.

Contempt for democracy

A desperate Supreme Court has now resorted to doing what it does when anyone dares to “denigrate” it – it has initiated contempt proceedings against Justice Karnan. Instead of working with the executive and legislature to ensure greater transparency in the functioning of judges, the Court is ordering medical tests on Justice Karnan to ensure he is of sound mind to stand trial for contempt.

Last February, the law minister confirmed to Parliament that the government was going to make a renewed push for a judicial accountability law. The fact that there has been no movement on this front should not come as a surprise. The Supreme Court will almost certainly strike down any law passed by Parliament making them accountable, just as it did in 2015 when it struck down the law seeking the creation of a National Judicial Appointments Commission to replace the collegium system, on grounds that it violated the independence of the judiciary.

The Indian judiciary has conflated independence from interference with independence from accountability. It does not subject itself to the will of the people, expressed through their elected representatives in Parliament and government – the very same people whose taxes help pay for their salary, perks and retirement benefits.

Instead, they resort to popcorn nationalism by passing orders compelling the populace to stand for the national anthem at multiplexes and spend hundreds of hours of valuable judicial time restructuring the Board of Cricket Control in India.

Justice Karnan is due to retire next month, but unless the Supreme Court stops showing contempt for democracy by preventing the other organs a democratic country from acting as checks and balances, another problem child will soon be on the way.

Abhishek Sudhir author is the founder of Sudhir Law Review, a legal education website.