Last week, the Supreme Court issued a bailable warrant against Justice CS Karnan of the Calcutta High Court in matter related to contempt of court proceedings. The case was initiated after Karnan wrote to Prime Minister Narendra Modi demanding that several of his fellow judges in the apex court and high courts be investigated for corruption. Despite orders to appear before it, Karnan remained defiant by stating that he was no servant of the Supreme Court. On Friday, he reportedly ordered the Central Bureau of Investigation to investigate the seven Supreme Court judges who issued the warrant against him, including Chief Justice JS Khehar.
These developments have clearly hurt the image of the judiciary. Apart from corruption allegations, Karnan has also raised the issue of caste discrimination against him and has said that he was being victimised by upper caste judges since he was a Dalit.
What does this controversy say about the functioning of the judiciary? In an interview, former judge of the Madras High Court, K Chandru, argued that Karnan’s case proved that the process of judicial appointments needed an overhaul. He said that judges have to be made accountable to the people and that courts should learn to command respect through their actions and not through contempt proceedings. Excerpts:
Karnan has defied Supreme Court orders and has said that he is not a servant of the court. How do you see this confrontation?
There have been judges in the past with questionable background and unbecoming behaviour. But in all of those cases, the matter had remained within the judiciary. Justice Karnan has brought such behaviour to the open. I guess this is the only difference.
He has made news more for his non-judicial interventions than his judgments. What does this say about the judiciary?
Justice Karnan is a standing monument to the fact that the collegium system of judges appointment, under which judges appoint other judges, is not a foolproof method. How did a person of such qualities become a judge in the first place? The process of selection involves the High Court collegium, the Supreme Court collegium, the office of the President and the Union government, which does the background check. He was appointed as a judge in 2009 and within a year was elevated as a permanent judge. So, in retrospect, we should assume that he had escaped any proper scrutiny of his background.
But does one case negate the very system?
There is something more to this system that is worrying. After the appointment, there is absolutely no space for corrections. Once appointed, the only intervention possible is through impeachment by Parliament, which is a complex and long-drawn process. Unlike many past instances of complaints against judges, which remained in the realm of gossip in the corridors of the courts, in this case you have specific complaints made against the conduct of Justice Karnan by three chief justices who have served in the Madras High Court. This apart, his own conduct, where he had abused fellow judges in the media and passed orders that have no basis in law, intervened in court proceedings, all these went unnoticed by four successive chief justices of the Supreme Court, who should have intervened.
That is where Karnan makes his case. He says all such complaints and allegations come because he has raised the issue of corruption of his fellow judges.
I want to know if someone writes 20 names and alleges corruption, should the system be so weak that an investigation should start immediately? For any investigation to begin, especially on sitting judges, there has to be concrete prima facie material available. Let us also examine the conduct of Justice Karnan who is making these allegations. When he addressed the media on Friday after the Supreme Court issued a bailable warrant against him, standing next to him was a person convicted by courts for a crime and who is known to have a dubious background. Now, how do you expect any confidence in the accusations made by a judge who has no problems in being in the company of convicted criminals?
You say there are no checks and balances in the system. But the problem was attended to and he was transferred.
This is another major problem and exposes the inadequacies of the system. How can transfer be the solution for such misconduct? If a person is corrupt or is mentally imbalanced, will transferring him solve the problem? What you are doing is essentially exporting the problem to another place, which can never be a solution. Therefore, I see Justice Karnan as the embodiment of all that is wrong in judicial appointments and judicial accountability. During the hearing on the challenge against the National Judicial Appointments Commission law, which sought to replace the current system of collegium appointments, the judges asked the Attorney General if he could point out one specific instance of a bad appointment. By doing so, the judges diluted the arguments against elements like Justice Karnan. People who are responsible for the creation of a monster, they dissolve their responsibility of correcting the wrong. Then it falls on the shoulders of successive people, who also tend to evade taking any concrete action. It is now like a genie that escaped the bottle.
Judges are neither accountable to the people nor to the system which appointed them. There were written complaints against him not by pedestrians but by chief justices of high courts. What prevented the Supreme Court from conducting an in-house investigation or recommendation for impeachment? Until the High Court itself moved the Supreme Court on the judicial side, there was no action.
The judge said he was being discriminated against because he is a Dalit. Now, can such a serious charge be disregarded?
See, casteism is part of Indian society. Unless the caste system is destroyed, caste prejudice will not disappear. Caste prejudice can be open or concealed. Unless a person who suffers expresses himself, others cannot feel for him. But, given the kind of powers a judge wields and the kind of respect you have in society by virtue of that position, it is difficult for [such] people to be insulted openly. Justice Karnan has pointed out that fellow judges had insulted him because he was a Dalit. But from the nature of his allegations, I feel it was done to garner sympathy. He has not concretely listed out any incident. He wanted specific portfolios allotted to him in the Madras High Court. Why should a judge seek any specific portfolio knowing well that such allotment is done through a roster system? How is one portfolio less than the other? The chief justice, who refused, was abused with the choicest of words. Where does the question of Dalit come in here?
Justice Karnan knows very well that whenever his conduct is questioned, he could use the Dalit card. It is a weapon of convenience. You must understand that there were Dalits among the judges who complained against him. A wife of a Dalit judge filed a petition against him. Every time this Dalit card is pulled out, things are hushed up. If you look at his conduct over the last five years, it is clear something is seriously wrong.
Karnan has only a few months left in his tenure. Is an impeachment necessary in such a case?
As he himself pointed out, impeachment is the only way. Whether it is possible under the circumstances is another question. The issues raised by Justice Karnan are substantial. Can you punish a judge for contempt while he is serving? When they discussed about a judicial accountability law, there was a debate on bringing in a corrective process before impeachment. But the government seems unwilling to make a move on this. There is no discussion on how to make the court accountable to the people.
Can judges be made accountable to the people when you have such a tough contempt law that almost prohibits any comment on judges?
I have said this before. In this country, contempt laws are used to browbeat anyone who dares to criticise the judiciary. You cannot have respect by command in a democracy. For example, take the case of former Supreme Court judge Markandey Katju. It is unpardonable what the Supreme Court did to him in the recent contempt proceedings. The judiciary has to inspire confidence by its actions and not through the contempt law. I think such a law is unnecessary in a democracy.