A Legal Vacuum Enabled Justice Karnan's Bad Behaviour

With there being no measure short of impeachment to discipline judges, they can get away with various kinds of misconduct.

Justice C.S. Karnan’s prolonged spat with his fellow judges highlights the longstanding need for an effective judicial accountability law in India. There is currently no mechanism short of impeachment to discipline judges. Consequently, numerous instances of judicial misconduct have gone unpunished and bad judges have never been weeded out of the judiciary.

The current statutory mechanism for judicial misbehaviour, the Judges (Inquiry) Act, 1968, has hopelessly failed to discipline judges. The legislation created a procedure for impeaching judges but does not address infractions that are not serious enough to warrant impeachment. Two Bills in 2006 and 2010 to impose accountability short of impeachment failed to clear parliament. Judicial indiscipline has flourished in this legal vacuum.

Justice Karnan’s misconduct

Justice Karnan has a history of hurling invective and unproven accusations at other judges. His grievances appear to stem from a feeling of being sidelined from important cases. The judge has publicly accused his colleagues of caste-based discrimination, sexual assault and corruption, without any supporting evidence. In 2015, he attempted to try his own chief justice at the Madras high court, the highly-regarded Justice Sanjay Kishan Kaul, for contempt of court.

Instead of fixing the problem, the Supreme Court collegium transferred Justice Karnan to the Calcutta high court. Before he went, Justice Karnan opened criminal proceedings against two Supreme Court judges. Once he arrived in Kolkata, the judge wrote to the prime minister accusing 20 of his colleagues of corruption. As a result, an unprecedented seven-judge bench of the Supreme Court began contempt proceedings against him.

Growing judicial indiscipline

Justice Karnan’s bizarre behaviour embarrasses himself and the judiciary he represents. But – and here’s the rub – while his wild allegations are probably false, there is no denying that there is widespread misconduct in the judiciary.

Justice Karnan’s appointment as a judge was first recommended by Justice Asok Kumar Ganguly who, in 2013, was accused of sexually harassing an intern. Even though a panel of Supreme Court judges confirmed the intern’s accusations, Justice Ganguly was never prosecuted. A similar complaint against Justice Swatanter Kumar, currently the chairman of the National Green Tribunal, was met with an illegal gag order by the Delhi high court that banned the press from reporting on the matter. In 2003, several judges of the Karnataka high court were caught cavorting with sex workers at a roadside resort.

There is rampant corruption in the lower judiciary – of a degree that is usually seen in failed states. In 2005, the total value of corruption in the judiciary was quantified at Rs 2,630 crore per year. In 2010, former law minister Shanti Bhushan courted contempt by claiming that eight of the last 16 chief justices were corrupt. In 2015, Justice Markandey Katju claimed that half the higher judiciary was corrupt. It is not surprising that Supreme Court judges continue to claim that they are immune from the transparency requirements of the Right to Information Act.

Impeachment or bust

The constituent assembly debates remind us of how far the judiciary has fallen. The assembly unanimously agreed that the occasion to discipline a judge for misconduct was unlikely to ever arise. N. Gopalswami Ayyangar believed that removing a judge was “the rarest of contingencies” that nobody would have to undertake. The assembly was only interested in the procedure to impeach a judge. They did not even consider Justice Karnan’s variety of lesser misconduct.

In 1968, the Judges (Inquiry) Act created a procedure to impeach judges. The limitations of focusing only on impeachment became clear when the non-Congress opposition sought the removal of Justice V. Ramaswami for corruption in 1991-93. After being eloquently defended by Kapil Sibal in parliament, the removal motion failed because the judge’s offences were not considered serious enough to warrant impeachment.

‘Minor measures’

In the Justice A.M. Bhattacharjee case (1995) regarding a judge’s corrupt land allotments, the Supreme Court finally recognised the “hiatus between bad behaviour and impeachable behaviour”. But in the absence of credible suggestions to fill that gap, an arbitrary policy of ‘minor measures’ was invented to deal with judicial misconduct on an ad hoc basis. The judiciary oversees those minor measures itself – so, essentially, the judges judge themselves.

In the Justice Ramaswami fiasco, the minor measures approach failed. At first the judge was kept away from his docket, but a panel of colleagues who were supposed to apply minor measures against the judge instead allowed him to resume his post. Nevertheless, the 195th report of the Law Commission, also chaired by a former judge, made a strong pitch in favour of the minor measures approach.

Passing the parcel

The most damaging form of the judiciary’s notion of accountability is the policy of transferring bad judges to different courts. Justice Karnan himself was transferred to Kolkata instead of being disciplined in Chennai. The transfer policy has not worked out well for smaller courts, particularly in northeast India, because that is where bad judges are invariably sent. Justice P.D. Dinakaran, who was accused of land grabbing, was sent to the Sikkim high court as its chief justice.

In a telling incident, 25 judges of the Punjab and Haryana high court, including Justice G.S. Singhvi, who infamously re-criminalised homosexuality, struck work in 2004 after their chief justice demanded to know why they had accepted gifts from illegally-built golf clubs that were facing proceedings in the same court. It was the first time in judicial history that an entire court effectively mutinied. Instead of the judges being disciplined, the chief justice was banished to Guwahati.

A judicial accountability law

Shuttling judges across the country does nothing for judicial accountability. The minor measures approach has not worked either. What is needed is a statutory mechanism that clearly defines judicial misconduct that falls short of impeachable behaviour. A dual scheme of offences is necessary – one branch concerned with misconduct and bad behaviour, and the other branch with ordinary unprofessionalism such as inefficiency and rudeness.

Judges must submit to the law like everybody else. If judges avoid criminal prosecution for offences like sexual harassment, the point of a special legislation would be defeated. Therefore, the law must protect complainants from reprisals as well as negate the tremendous influence that judges have in the legal system.

Judges have consistently claimed that an external accountability model would be politically misused. That was the primary ground for striking down the proposed National Judicial Appointments Commission in 2015. But it is not difficult to minimise the possibility of the disciplinary power being politicised, particularly if the power is vested with an independent body. Judges should no longer be able to hide their misconduct behind the fig leaf of judicial independence.

Bhairav Acharya is a lawyer and policy analyst. He tweets at @BhairavAcharya. His writings are archived at his personal website www.bhairavacharya.net.