Leaving aside the flamboyant drama surrounding the issue what Justice Karnan episode foregrounds is the urgent need to save Indian judiciary from its multiple organ failure through a set of holistic and integrated judicial reforms.
The need to set up a credible statutory mechanism to choose right kind of professionals to the judicial posts and an effective system to investigate charges of misdemeanor, corruption and unfairness of judges, are the top priority items that need immediate attention. The episode took an ugly turn as judges on both sides of the tussle have no majesty or maturity required for the positions they hold. Time and again Justice Karnan evinced that he is an unsuitable person for a majestic judicial post. The other side, which made the issue so ridiculous with unnecessary emotional outbursts at times, also deserves ridicule.
Select right persons as judges
Unless right individuals with proper knowledge, ethics and sagacity are chosen for the position of judges endowed with high responsibility, it would practically be impossible for our country to keep the judicial system running intact. Everybody including the Supreme Court (SC) admitted the flaws of the collegium system and the impropriety in its system of selection of judges but the judiciary preferred to retain it with all its flaws and ignored every proposal put forward to replace it with a comparatively saner, more accountable and more transparent institutionalised mode of selection of judges. The demand for judicial accountability is long standing but remains sidelined or almost neglected.
The judges, who have been selected through collegium with no much merit, show instances of misbehavior or deviant behaviour which neither the judiciary can accommodate nor the people at large can withstand them for long. If the selection does not bring right incumbents to the bench it is impossible for the system to tame and keep them in tact without indulging in corruption or other maladies, while keeping them insulated from any kind of external control or pressure so as to ensure their independence.
The Justice Karnan issue originated from Justice Karnan’s allegations of corruption which he said to have come across in his close vicinity. The allegation, after a series of instances of intemperate behavior from both sides, was counter balanced by initiating contempt of court proceedings against him by setting up a seven judge bench. The reason for Justice Karnan's punishment is not spelt out clearly but a sentence was issued without framing charge, trial and conviction so as to make it difficult for Karnan to defend the case as Indian criminal jurisprudence stipulates. How an allegation of corruption turn into a contempt of court case is not yet clear to many observers.
No disciplinary provision except impeachment
Indian Constitution or the statutes do not prescribe any punishment for judges except their removal though impeachment.
Impeachment is more a political action than a legal action or a way of punishment. In effect, the constitution is unreasonably or unequally favourable towards SC and HC judges. The judges are therefore liable to fall prey to corruption and misbehavior and they need to be subjected to some sort of penal action for their misdemeanors without compromising on insulating them from outside influences for maintaining their judicial independence.
The Article 124(4) of the Constitution stands against proven misbehavior, bribery and crimes involving moral turpitude of Judges and the substantive procedure for impeachment of them in case they involve those vices. Similarly Judges (Inquiry) Act 1968 provides for the procedural formalities of investigation and inquiry. In fact, the Judges (Inquiry) Act, a law without much teeth, has failed miserably in its purpose of disciplining judges. Since no successful impeachment could be done in the last seven decades, punitive action against judges is almost non-existent in India.
In 2006 a legislative bill titled Judge (Inquiry) Bill 2006 was formulated based on 195th report of the law commission of India and introduced in the Lok Sabha on 19th December. Later in 2008 another Judges (Inquiry) Amendment bill was introduced for establishing a National Judicial Council to inquire into allegation of misbehavior or incapacity but it was not pushed forward. In December 2010, the Judicial Standard s & Accountability Bill 2010 was introduced in Parliament to lay down judicial standards, to provide for accountability of judges and to establish expedient mechanism for investigation into complaints and misbehavior of judges of the SC &HC. But now no such reform is in consideration.
Therefore in order to regain public confidence in judiciary, credible statutory machanism for investigating the charges against the judges is an utmost necessary right now. The only mechanism now exists for enquiring allegation against Supreme Court and High Court judges is a three member committee of seniour judges, with no statutory power, constituted by the Chief Justice of India(CJI). The committee can do nearly nothing except requesting the judges to resign, even if charges are examined and found correct. Some accede to the request but some do not. Corruption, sexual extravaganza and other kinds of misbehavior of judges come up so frequently as complaints.
Corruption in Indian judiciary
In 2001, S P Baruchia, then Chief Justice of India, lamented that 20 per cent of the judges bring the entire judiciary into disrepute. Since then, at least eight high court judges had charges leveled against them, two of them faced removal and two resigned. Later Senior Advocate Shanti Bhushan as a party to implead in a contempt of court proceedings against his son Senior Advocate Prasanth Bhushan said to have stated that eight of the previous sixteen Chief Justices were corrupt and the names were handed over to the court in a sealed cover which has not been opened so far. Justice S H Kapadia, former CJI, was of the opinion that the judges should have not only constitutional morality but also ethical morality, as well.
Dealing with erring judges
In criminal offences against judges, the police can register an FIR but only after getting permission from the Chief Justice of India/Chief Justice (CJ) of the respective High Court (HC). No special protection as of now exists for them except the requirement of the above said permission. But fighting a criminal case against a judge is a tough task. In Provident Fund Scam case, Justice K G Balakrishann did not give permission to register an FIR for two years. Justice Nirmal Yadav who was later charge sheeted for a criminal case known as cash at judge’s door scam for the first time in Indian judicial history and found to be fit to proceed with prosecution, by a there judge bench panel was transferred by Justice K G Balakrishnan on the last day of her retirement, after absolving her of the charges leveled against her. No action was later taken against her.
A judge can be removed only on proven misbehaviour but the scope of the term “misbehaviour “has not been defined in a well-accepted manner. The judicial actions of judges are protected by the Judges (Protection) Act. In exercise of discretion in judicial functions by judges, no court nor any authority can interfere and restrict anything forming part of his judicial functions The exercise of judicial functions include the ruling of judges on issues of law and issues of fact, exercise of discretion at various occasions in trial, ruling on maintenance, alimony and sentence imposed, etc. Such an exercise of statutory authority or any bonafide action of a judge does not come under restrictive action by any authority.
Defining judicial misconduct
On judicial misconduct of judges, it is possible for a disciplinary authority to exercise some control. Such cases of misconduct broadly includes:-
- inappropriate court room behavior,
- failure to maintain decorum,
- rude or abusive behaviour,
- failure to dispose of court business subjecting to improper or illegal influence interfering with attorney–client relationship,
- displaying obvious bias etc. Lack of punctuality in observing court hours,
- keeping away from work without leave,
- reserving judgments against established norms,
- jumping cause list and manipulating it,
- adjournment for no reasons,
- seeking cheap popularity trough media,
- issuing absurd orders, etc.
The above listed are some of the examples of judicial misconduct but it is not an exhaustive list.
Filing a Complaint against a Subordinate Judge
Anyone can file a complaint for taking disciplinary action against a subordinate judge before the Registrar (Subordinate Judiciary), of the High Court. The complaint should accompany a sworn in affidavit and verifiable materials to substantiate the allegation as per the existing procedure.
On receipt of the complaint the Registrar will bring it before the Chief Justice and the Judge-in-charge of the district and seek an explanation from the accused Judge before taking a decision on the complaint. If the explanation is satisfactory no action is taken and the complaint will be closed. Otherwise action will be taken by a resolution of the administrative committee of the court in exercise of powers conferred on it under Article 235 of the Constitution. The High Court has to protect the judicial officers from motivated complaints but it cannot ignore any dishonest performance of a judicial member.
Similarly, a complaint against a staff member can also be filed before the Registrar for appropriate action.
Complaint against SC & HC Judges
The SC has established an in-house procedure to take remedial action against Judges accused of misconduct and impropriety of the SC and HC.
A complaint against the judge can be examined by the Chief Justice, if directly presented before him. If the complaint is of a serious nature, he should seek the judge’s explanation. If no further action is needed on the file it will be closed. If a deeper probe is needed, the complaint will have to be sent to CJI with the response of the accused judge and he Chief Justice’s comments. If CJI finds the need for a deeper probe it will be referred to a committee of two Chief Justices and a Judge of the High Court to conduct an enquiry.
If the Committee finds reasons for his/her removal it would request the judge to resign or retire. Or else, the CJI will ask the Chief Justice not to give any work and put the matter before the Prime Minister to initiate impeachment process.
If CJI directly receives a complaint against a high court judge he should send it to the Chief Justice of that high court for further comments. On getting the comments, the CJI either closes the file if it is a frivolous one or take appropriate action as outlined above if it is of some substance.
Even though this practice does not have sound statutory backing, it will work somehow to some extent in restraining some of the errant judges but not all.
In short, Indian laws put almost no restraint on judges so as to insulate them from external influence and facilitate their independent judicial decision making but the recent incidents suggest that some of the judges produced by the improperly crafted collegium system do not reflect the decency, decorum and majesty needed for such a majestic position. Therefore what is required right now in the context of Justice Karnan episode is make the selection of judges foolproof and to establish a system for punishing or weeding out the wrong ones among the judges. Otherwise, issues like this will crop up so frequently and the disease will spread contagiously damaging the entire judicial system.
The author, now with Thrissur Bar, can also be reached firstname.lastname@example.org