The Justice Karnan episode does raise several questions on the state of the Indian judiciary today. The Constitution has conferred enormous powers on the superior courts to maintain rule of law and good governance and ensure their independence. Expecting high standards and integrity of those who come to occupy positions in the higher judiciary, the Constitution-makers thought it unnecessary to incorporate provisions demanding good behaviour, integrity and accountability. It is only on very rare occasions that the difficult procedure of impeachment is contemplated against erring judges.
The present situation manifested through the spat between Justice Karnan and the Supreme Court is the culmination of a series of self-inflicted wounds on the part of the judiciary in which no action or inadequate action was taken when stern and transparent action was called for.
The collegium system introduced by the judges themselves started with a promise to cleanse the system of appointments, promotions and transfers of judges. It was allowed to degenerate on occasion to favouritism and partisanship without anyone outside knowing how selections were made and what criteria were followed. The minority judgment in the National Judicial Appointments Commission case reveals the weaknesses of the system kept secret by select judges in power.
The circumstances in which and the procedures by which Justice Karnan came to be appointed require a thorough probe. The argument that transparency and participation of even retired judges in the selection processes will undermine the independence of judiciary requires re-examination. The Judicial Standards and Accountability Bill which provides for disciplinary action against erring judges needs to be enacted as the so-called in-house mechanism, about which there is little knowledge even amongst judges, has failed to deliver probity and accountability.
The Supreme Court could have sought the impeachment procedure to remove Justice Karnan instead of the contempt action. Furthermore, if contempt procedure were to be invoked, it could have been initiated when the so-called unfounded allegations were first raised by him several years ago. Instead of ignoring the allegations made, an in-house judges’ committee could have given a hearing to the judge, examined the truth and disposed of the matter on merits.
Under no circumstances can the action on the part of Justice Karnan be justified. The wounds he has inflicted on the institution seem to have been deliberately done not to correct it, but to denigrate it, something unthinkable from a sitting judge. He may have reason to feel isolated or even humiliated which led him to seek protection under the dalit card. There have been many judges including chief justices in the Indian judiciary who were dalits and none of them complained of caste-based discrimination in judiciary. There is already reservation in the subordinate judiciary and there is a sizeable number of dalit judges performing their duties honourably. They are being let down by Justice Karnan’s behaviour. With more dalits joining the legal profession, one can expect more dalit judges in the higher judiciary as well. The record of the Indian judiciary in articulating affirmative action under the Constitution for the depressed classes including dalits is unique and much appreciated in different jurisdictions. However, it cannot afford to be populist like the executive if fair constitutional balance in rendering justice for all sections of people is to be maintained.
To be fair to the political class, they have no part in the making of the Justice Karnan affair and therefore cannot be accused of mala fides in being inactive particularly when the matter is actively being handled by the Supreme Court. No doubt, the court is in a catch-22 situation and it is wise to proceed on a low key lest the judge in question should come up with more ugly stories now in his dreams!
Dr Menon is a distinguished legal scholar and educator.
