The face-off between Justice Karnan and the Supreme Court has rapidly deteriorated from a Punch and Judy show to a Three Stooges burlesque with juridical invectives and challenges being hurled about with gay abandon by both sides. There has been very little public discussion of this, presumably because this needless drama is perhaps seen as an internal matter of the higher judiciary. Nothing could be further from the truth. The judiciary is the one remaining key-stone of our sorry democracy, when all the other three pillars have begun to crumble, and therefore the citizens have a right to involve themselves in this theatre of the absurd for two reasons. One, the likes of Justice Karnan hold, literally, the power of life and death over us and their behaviour, conduct and mental equilibrium concerns all of us. Second, in the absence of any other checks and balances on superior court judges, the Supreme Court’s ability or will to rein in a maverick judge has to become a subject of scrutiny by the nation. The question has to be asked: After all, how safe is the average citizen from a judge who has been defying the highest court of the land for months now, a judge who has ordered the registration of cases, seizure of passports and even imposed prison sentences on no less than seven Supreme Court justices ? The SC has now sentenced him to six months in jail for contempt but the unspoken question that haunts many of us- is Justice Karnan a one-of-a-kind aberration or are there more of his like embedded in the system?
This unfolding drama, it has to be admitted, is partly the result of the judiciary’s own hubris and over-reach. The Constitution provides adequate safeguards to preserve the independence of the judiciary, but over time the Courts have added more layers of protection, to a point where the judges today have become almost divine entities. They are accountable to no one but themselves, they cannot be questioned, they appoint themselves, they are immune from any prosecution or investigation unless they themselves approve it, they are immutable and inviolate. The Contempt of Courts Act provides the final coating of teflon which the public or the media can penetrate only at their own peril. They have conferred on themselves almost a supernal status, and this has now boomeranged on them and come back to haunt them. It is precisely this celestial immunity which Justice Karnan has been using to cock a snook at the Supreme Court, trading arrest warrant for arrest warrant, medical examination for medical examination, passport for passport ! And, at least for now, the Supreme Court has been unable to find a way out of this “chakravyuh”.
This is not the first time that a superior court judge has gone wayward. In the past too there have been charges made and questions asked, the details of which it would be prudent not to elaborate here. But I do not recollect any tangible or substantive action being taken in any of those cases. There has recently been the case of retired Justice Katju, in which fortunately a way out was found by his tendering an apology. But these instances only reinforce the feeling and aura of invulnerability among them, making them, literally, a law unto themselves. All the required ingredients were in place and Justice Karnan was simply waiting to happen, as inevitably as the being created by Dr. Frankenstein when the potion was just right.
The dilemma the Supreme Court has found itself in is a constitutional one. A superior court judge can only be removed by impeachment by Parliament. This was tried once but was aborted: a fractured Parliament, riven by caste, regional and political rifts will always ensure that this clause can never be implemented.The Supreme Court ostensibly has found a way out of this imbroglio by sentencing Justice Karnan to imprisonment for six months for contempt. But since he retires next month this amounts to his removal, and questions have already been raised by many legal authorities whether this is unconstitutional. Knotty legal questions still remain: removal from service usually entails forfeiture of pension in government- will he be entitled to a pension now when he retires? Will he be disqualified in future from any service under the government ? Is the SC order in conflict with the constitutional provisions ? How robust and objective is the collegium system of appointment if it selects judges who show scant respect for even the Supreme Court? Will Justice Karnan now play the Dalit card and create further rifts within the judiciary itself? I have a feeling we have not heard the last on this matter.Justice Karnan has already moved a petition asking the SC to recall the order for his arrest, and the Court has agreed to hear it. In all probability a via media will be manufactured, the errant judge will be allowed to retire( perhaps prematurely to avoid more of his broadsides) and all will be well in Camelot again- till the next Justice Karnan surfaces somewhere else. It is time to address the real malaise and not just apply a band-aid.
I am reminded of a mythological tale I heard in the remote Sainj valley of Kullu district in Himachal during one of my treks many years ago. Many centuries ago( so the local legend goes) the valley was ruled by a giant “rakshas” known as Rakti Beej. He had been given a “vardan” by the Gods that he could not be killed, for every time a drop of his blood fell on the ground a new Rakti Beej would sprout from it. Secure in his invulnerability, Rakti Beej set about killing all the Gods one by one! Finally, they appealed to MahaKali to save them. She grabbed Rakti Beej with two of her hands, cut his throat with the other, and collected the falling blood in a cup with the fourth, preventing it from falling on the ground. Thus was Rakti Beej finally defeated. Absolute power can be a double-edged sword, as even the Gods discovered !
Unfortunate as this episode is, it presents us with an opportunity to devise a process by which judges who cross the line can be eased out of service without nuking the system. In most well administered countries moral pressure and the force of public opinion itself are enough to make a delinquent judge quit on his own. In recent times Lord Dennings, a British judge, stepped down after charges of racism were made against him. This, however, is unlikely to happen in India for two reasons: first, public criticism of a judge is stifled by the laws of contempt and hence the force of public opinion is missing, and secondly, we as a nation have no sense of moral responsibility. Therefore, we need to invent a system to ensure that this type of situation never recurs, and that there must be a way to remove recalcitrant judges other than by way of impeachment alone. We need to revisit, for example, the Judges Inquiry Bill ( 2006) which proposed a committee of judges to enquire into cases of judicial misconduct. Parliament torpedoed this Bill on the ground that judges cannot be a judge in their own cause. So how about adding a couple of non-judge legal luminaries to this committee ? Surely this is not an unsurmountable impediment ? But for this to happen the judiciary must acknowledge that too much protectionism is not healthy for its own body fabric. It must accept that judges too are mortal and not infallible and that when they err gravely there must be a process to discipline them and remove them from service without having to invoke the brahmashastra of impeachment. The judiciary cannot evolve such an alternative system by itself- it must come down to ground and sit with the Executive to find the solution. And it must accept that too much power ultimately self- destructs, and takes all with it.
Avay Shukla retired from the Indian Administrative Service in December 2010. He is a keen environmentalist and loves the mountains.
He divides his time between Delhi and his cottage in a small village above Shimla. He used to play golf at one time but has now run out of balls.
He blogs at http://avayshukla.blogspot.in/
Wholeheartedly agree – we do need an effective mechanism to discipline judges. The question is even if and when one is agreed to (unlikely?), who will approve and administer this mechanism? Judges themselves? the ministers? cops? politicians are out anyway.
The other BIG issue is that while maverick (usually crooked) judges of the higher judiciary do once in a while come under Media scrutiny and weak flak, what about the thousands of judges in the lower judiciary who actually decide without fear or accountability (except of their own dubious superiors), whether ordinary people are let off or condemned to the cursed existence of fighting lawyers (including their own) and judges in a maze of indifferent courts, for the rest of their life.
I know exactly who you mean, Pankaj. This particular gentleman symbolised the worst in the higher judiciary. He had an ego many times the size of his brain, was arrogant to the point of being vicious, was vindictive and loved to flaunt his power. There was a time when I had to appear in his court practically every week on some contempt charge or the other. On one occasion he asked me whether I had brought my toilet bag, because he intended to send me straight to the jail from the court! One other time, when I was hospitalised with a broken spine and could not appear he threatened to have me brought to court on a stretcher, like some heinous criminal. We all felt vindicated when he was overlooked for promotion to the Supreme Court, and subsequently retired, unheard and unsung. The higher courts have vast, almost unlimited powers, which is all the more reason why they should be used judiciously and with extreme circumspection.