Error of judgement

The selection process that led to Justice Karnan becoming a judge needs revisiting

Asia and the Pacific adopting the Statement of Principles on Independence of the Judiciary prescribed that “Judges shall uphold the integrity and independence of the Judiciary by avoiding impropriety and the appearance of impropriety in all their activities.”

Such activities are both inside the court and outside it. Justice Karnan was appointed as an additional judge in 2009. He was confirmed as a permanent judge in 2011. In the same year, in an unprecedented move, addressing a press conference from his chambers he claimed caste-based harassment by his brother judges and wrote to the National Commission for Scheduled Castes. From 2014 onwards, his conduct has kept him in the news; this is completely dissonant with the principle that judges should be heard of through their judgments alone.

Article 217 of the Constitution provides due protection for the appointment of high court judges and a stringent procedure for the removal of a high court judge. The procedure to be followed for removal is through inquiry by a Parliament-appointed committee. The Judges Inquiry Act, 1968 regulates the process of removal of judges. Proceedings before the committee appointed under this act are unique in the manner of procedure and safeguards. The mandate of such a committee is to investigate the misbehaviour or incapacity of a judge.

Finding that there needs to be action against judges who do not follow “universally accepted values”, the Supreme Court on December 15, 1999 adopted the Report of the Committee on In-house Procedure to take suitable remedial action against erring judges. This procedure was created to deal withallegationsagainstajudgepertainingto the discharge of his judicial functions.

In Justice Karnan’s case, this in-house procedure appears not to have been resorted to. The in-house procedure provides for the CJI to advise a judge to resign or seek voluntary retirement. If the judge does not resign or retire, the chief justice (of the high court) can be advised not to allocate any judicial work, and the matter brought to the notice of the president and prime minister.

Whether Justice Karnan’s conduct was brought to the notice of the president or prime minister is not in the public domain. But his actions have received extensive media coverage. The power to remove a judge is vested with the Members of Parliament (in view of Articles 124 and 217 of the Constitution). They may move a motion for the removal of a judge on grounds of proved misbehaviourand/orincapacity,whichremedy was available, but not (yet) exercised.

Justice Karnan is at the end of his tenure and the contempt proceedings against him stand concluded. However, for the future we needseriouscontemplationfromalllimbsof our democracy to prevent such a situation and to ensure that only those of “sterling quality, character and courage” occupy the high constitutional office of a judge.

The writer is a senior advocate, visiting professor at Northumbria University and a former Additional Solicitor General of India