A Flawed Procedure to Sack Judges that India Needs to Urgently Remedy

The last chapter in Justice C.S. Karnan's defiance of the Supreme Court is some distance away. But if his case can force us to debate the entry and exit system for judges of the higher courts, that will be a silver lining.

Justice C.S. Karnan’s judicial journey has combined the elements of comedy, farce and tragedy; quite often all three are present in the instances in which he has precipitously brought down judicial standards and esteem.

He was appointed as an additional judge of the Madras high court on March 31, 2009. Additional judges have no security of tenure; it is only when they are made permanent that the constitutional protection against removal except by impeachment applies to them.

Till he became a permanent judge on March 29, 2011, he stayed clear of controversy. Once made permanent, Karnan launched a series of bizarre actions, most of these being personal allegations against his fellow high court judges. These could be wounding if taken seriously, but thankfully they were not.

In another celebrated instance, he marched into a court hearing a challenge to the nomination of judges made by the Madras high court, and wanted to attack the selection. Accompanying many of Karnan’s barbs was a threat of invoking the protective provisions relating to Scheduled Castes and Scheduled Tribes; action against him was said to be an atrocity under the SC/ST (Prevention of Atrocities) Act. His complaints were invariably marked to the National Commission for SC/ST and, for good measure, copies were sent to prominent Dalit leaders. Fortunately, none of them have weighed in on his behalf.

Justice C.S. Karnan, Madras high court. Credit: Special Arrangement

Justice C.S. Karnan, Madras high court. Credit: Special Arrangement

Karnan’s most recent exploits consist of defying the Supreme Court’s order transferring him to the Calcutta high court. He ventured to stay the apex court’s order by what he called a suo motu order (his own ) and commanded the head of the judiciary to present his defence. Prior to that, he embarked on a campaign of accusing the chief justice of the Madras high court, S.K. Kaul of caste discrimination because of the allocation of judicial work portfolios

The news of his transfer will no doubt be a relief to the Madras bar and bench, but may serve to enrage lawyers and judges in Calcutta who can ask, with perfect justification, what that court has done to deserve such adornment. Indeed, this illustrates the predicament of dealing with a permanent judge who disrupts the functioning, integrity and the standards of the judiciary.

The constitutional procedure of impeachment requires a committee of inquiry and then the vote of the combined houses of parliament. The motion must be supported by the majority of the total membership of the house and not less than two-thirds of those present and voting. The ground for impeachment is misbehaviour or incapacity. In this case, the first is self-evident and the second requires little inference. However, the process will further exacerbate matters by providing him a more prominent stage. Indeed he has already indicated his relish at the prospect of hurling allegations from the pulpit of parliament. He is also likely to play the caste card. Launching impeachment may well be playing into his hands.

Inadequate remedies

In recent years, the judiciary has devised what it calls an “in-house procedure” to tackle errant judges. Where the complaint is a serious one, the chief justice of India can constitute a three-member committee consisting of two chief justices of the high courts and a high court Judge. If the committee recommends removal of the judge, the CJI can advise the concerned judge to resign or seek voluntary retirement. If he unwilling so to do, the CJI can order that no judicial work be allocated to the judge and inform the president and prime minister of the same with a request to initiate the proceedings for removal of the judge.

This procedure is infrequently used; the proceedings are wrapped in secrecy; the judge continues to hold the post, and if the impeachment motion fails, it may not be possible to deny him work. So much depends on whether the judge has the stirring of propriety to demit office. Given his previous conduct and the possibility that Justice Karnan is looking at the grandstand of impeachment proceedings, it is unlikely that he will voluntarily step down if the in-house process goes against him.

There is, therefore, need for some process which has more teeth than the in-house procedure. This is all the more so since complaints about misbehaviour of members of the higher judiciary are regrettably on the increase.

Having been rebuffed in the matter of judicial appointments in the National Judicial Appointments Commission case, the government has started to talk about legislation to control judicial misconduct. One hopes that the judiciary and the executive are able to get their act together and come up with consensus on the structure and system of such an initiative. It is sorely needed; in its absence such misconduct can multiply with impunity. In fact, a petition was filed in the Supreme Court raising serious charges of corrupt practices against Justice Karnan; it was withdrawn after the court orally observed that the system should be allowed to work. One waits to see how effective that will be in this case.

Tracing the backstory

One more aspect before we are done with Justice Karnan, and that is the need for an investigation into how he was appointed. His appointment came as a surprise; rumours abound that he was close to the family of Justice K.G. Balakrishnan who was CJI at that time. In its recent judgment in the NJAC Case, the Supreme Court has talked about transparency and accountability, using the expressions “perestroika” and “glasnost”. This is an apt case where the veil of secrecy should be lifted to enable sighting of the material, and men, in support of the appointment. Some exposure and accountability will at least point the way to more care and maybe better resistance to the overarching influence of a CJI who does not rise to the standards of such office. The role played by successive chief justices may also be relevant; they failed to act on representations of a score of judges of the high court seeking action against Justice Karnan, and did not respond even to the plea of the then chief justice of the high court that the judge had barged into his chambers ” hurling a volley of invectives”.

There is little doubt that the epilogue of the Justice Karnan case is a distance away, but if it can provoke some examination of the entry and exit system for judges of the higher courts, that will be a silver lining. The problem, however, about reform caused by the gross case is that it can veer excessively towards control, thereby threatening judicial independence; that would be another unfortunate legacy of Justice Karnan.

Sriram Panchu is a senior advocate in the Madras high court