The real issue is there is no institutional mechanism for the selection and removal of judges.
While the Supreme Court, through an extreme reading of the constitution, gave its collegium the power to appoint judges, it did nothing for their removal.
The curious case of Justice C S Karnan, a Judge of the Calcutta High Court who has been defying the orders of the Supreme Court and refusing to appear before it to face contempt of court charges, is not being handled well by the bench hearing his case.
A few days ago, a bench headed by Chief Justice J S Khehar, ordered a medical examination of Justice Karnan since he has repeatedly defied the court’s orders and made wild allegations against fellow judges. The Judge, who was transferred from the Madras High Court to Calcutta for making unsubstantiated allegations of caste bias against the then chief justice Sanjay Kaul (now elevated to the Supreme Court), ordered a tit-for-tat mental examination of the judges of the Supreme Court. Yesterday (4 May), Justice Karnan sent the medical team dispatched by the Supreme Court packing. His defiance has been regularly compounded.
At a recent hearing of his case, while Attorney General Mukul Rohatgi asked the bench to take tough action against Justice Karnan on charges of contempt, advocate K K Venugopal asked the bench to wait it out and let Justice Karnan retire in June, when he superannuates.
While Venugopal’s advice is sensible in this case, it does not answer the question: What if Justice Karnan had three years more of service? Moreover, this suggestion does not face squarely the more fundamental issue of cranky judges who can use judicial power arbitrarily and bring dishonour to the system. If the only remedy for recalcitrant judges is impeachment by Parliament, rogue judges will get away with murder.
Not every judge sitting on a high court bench or in the lower courts is acting within the ambit of law.
Just because they have not been making wild allegations against the higher judiciary like Justice Karnan it does not mean they are fit to hold office. Many of them are judges only because someone did them a favour, and while in office, they are expected to return these favours. They often act to favour powerful politicians or businessmen. The wide powers given to judges is thus capable of being misused, and the only difference between the Karnan case and others is that judicial recalcitrance has not threatened the image of the higher judiciary.
Nor has the Supreme Court covered itself with glory in how it handled Justice Karnan. In ordering a mental health check, the court has ended up flouting the Mental Health Act, as this story in TheWire notes. Mental health tests cannot usually be done without the consent of the person involved, and Justice Karnan duly evaded this.
The real issue is there is no institutional mechanism for the selection and removal of judges. While the Supreme Court, through an extreme reading of the constitution, gave its collegium the power to appoint judges, it did nothing for their removal.
In fact, the mere fact that a judge like Karnan could be promoted to the High Court is an indictment of the collegium system. He could not have gotten to his current position of power without the collegium’s consent or connivance.
Shouldn’t the collegium share the blame for his elevation?
The only long-term solution to prevent such issues from cropping up in future is to have a proper system for the vetting and selection of judges. The nominees can then be ratified (or rejected) by the collegium.
We also need a strong judicial accountability law, which can deal with both misconduct and recalcitrance. Leaving the job of sacking judges to parliament means that very few rogue judges will be removed, given the tortuous nature of the process of removal.
Justice Karnan, in fact, wanted his case to go to parliament, and the reason for this is simple: given a chance to air his case in that public forum, he would have claimed victimisation as a Dalit.
And politicians are the last ones to take on a Dalit judge’s claims of being victimised head on.
Once Justice Karnan retires, the Supreme Court collegium should do some serious introspection – along with the law minister – on how to make the system of judicial selection and removal – less dependent on just the collegium.