The face-off between Justice Karnan and the Supreme Court has rapidly
deteriorated from a Punch and Judy show to a Three Stooges burlesque with
juridical invectives and challenges being hurled about with gay abandon by both
sides. There has been very little public discussion of this, presumably because
this needless drama is perhaps seen as an internal matter of the higher
judiciary. Nothing could be further from the truth. The judiciary is the one
remaining key-stone of our sorry democracy, when all the other three pillars
have begun to crumble, and therefore the citizens have a right to involve
themselves in this theatre of the absurd for two reasons. One, the likes of
Justice Karnan hold, literally, the power of life and death over us and their
behaviour, conduct and mental equilibrium concerns all of us. Second, in the
absence of any other checks and balances on superior court judges, the Supreme
Court’s ability or will to rein in a maverick judge has to become a subject of
scrutiny by the nation. The question has to be asked: After all, how safe is
the average citizen from a judge who has been defying the highest court of the
land for months now, a judge who has ordered the registration of cases, seizure
of passports and even imposed prison sentences on no less than seven Supreme
Court justices ? The SC has now sentenced him to six months in jail for
contempt but the unspoken question that haunts many of us- is Justice Karnan a
one-of-a-kind aberration or are there more of his like embedded in the system?
This unfolding drama, it has to be admitted, is partly the result of the
judiciary’s own hubris and over-reach. The Constitution provides adequate
safeguards to preserve the independence of the judiciary, but over time the
Courts have added more layers of protection, to a point where the judges today
have become almost divine entities. They are accountable to no one but
themselves, they cannot be questioned, they appoint themselves, they are immune
from any prosecution or investigation unless they themselves approve it, they
are immutable and inviolate. The Contempt of Courts Act provides the final
coating of teflon which the public or the media can penetrate only at their own
peril. They have conferred on themselves almost a supernal status, and this has
now boomeranged on them and come back to haunt them. It is precisely this
celestial immunity which Justice Karnan has been using to cock a snook at the
Supreme Court, trading arrest warrant for arrest warrant, medical examination
for medical examination, passport for passport ! And, at least for now, the
Supreme Court has been unable to find a way out of this “ chakravyuh”.
This is not the first time that a
superior court judge has gone wayward. In the past too there have been charges
made and questions asked, the details of which it would be prudent not to
elaborate here. But I do not recollect any tangible or substantive action being
taken in any of those cases. There has recently been the case of retired
Justice Katju, in which fortunately a way out was found by his tendering an
apology. But these instances only reinforce the feeling and aura of
invulnerability among them, making them, literally, a law unto themselves. All
the required ingredients were in place and Justice Karnan was simply waiting to
happen, as inevitably as the being created by Dr. Frankenstein when the potion
was just right.
The dilemma the Supreme Court has found itself in is a constitutional
one. A superior court judge can only be removed by impeachment by Parliament.
This was tried once but was aborted: a fractured Parliament, riven by caste,
regional and political rifts will always ensure that this clause can never be
implemented.The Supreme Court 0stensibly has found a way out of this imbroglio
by sentencing Justice Karnan to imprisonment for six months for contempt. But
since he retires next month this amounts to his removal, and questions have
already been raised by many legal
authorities whether this is unconstitutional. Knotty legal questions still
remain: removal from service usually entails forfeiture of pension in
government- will he be entitled to a pension now when he retires? Will he be
disqualified in future from any service under the government ? Is the SC order
in conflict with the constitutional provisions ? How robust and objective is
the collegium system of appointment if it selects judges who show scant respect
for even the Supreme Court? Will Justice Karnan now play the Dalit card and
create further rifts within the judiciary itself? I have a feeling we have not
heard the last on this matter.Justice Karnan has already moved a petition
asking the SC to recall the order for his arrest, and the Court has agreed to
hear it. In all probability a via media will be manufactured, the errant judge
will be allowed to retire( perhaps prematurely to avoid more of his broadsides)
and all will be well in Camelot again- till the next Justice Karnan surfaces
somewhere else. It is time to address the real malaise and not just apply a
band-aid.
I am reminded of a mythological tale I heard in the remote Sainj valley
of Kullu district in Himachal during one of my treks many years ago. Many
centuries ago( so the local legend goes) the valley was ruled by a giant “
rakshas” known as Rakti Beej. He had been given a “ vardan” by the Gods that he
could not be killed, for every time a drop of his blood fell on the ground a
new Rakti Beej would sprout from it. Secure in his invulnerability, Rakti Beej
set about killing all the Gods one by one! Finally, they appealed to MahaKali
to save them. She grabbed Rakti Beej with two of her hands, cut his throat with
the other, and collected the falling blood in a cup with the fourth, preventing
it from falling on the ground. Thus was Rakti Beej finally defeated. Absolute
power can be a double-edged sword, as even the Gods discovered !
Unfortunate as this episode is,
it presents us with an opportunity to devise a process by which judges who
cross the line can be eased out of service without nuking the system. In most
well administered countries moral pressure and the force of public opinion
itself are enough to make a delinquent judge quit on his own. In recent times
Lord Dennings, a British judge, stepped down after charges of racism were made
against him. This, however, is unlikely to happen in India for two reasons:
first, public criticism of a judge is stifled by the laws of contempt and hence
the force of public opinion is missing, and secondly, we as a nation have no
sense of moral responsibility. Therefore, we need to invent a system to ensure that this type of situation
never recurs, and that there must be a way to remove recalcitrant judges other
than by way of impeachment alone. We need to revisit, for example, the Judges
Inquiry Bill ( 2006) which proposed a committee of judges to enquire into cases
of judicial misconduct. Parliament torpedoed this Bill on the ground that
judges cannot be a judge in their own cause. So how about adding a couple of
non-judge legal luminaries to this committee ? Surely this is not an
unsurmountable impediment ? But for this to happen the judiciary must
acknowledge that too much protectionism is not healthy for its own body fabric.
It must accept that judges too are mortal and not infallible and that when they
err gravely there must be a process to discipline them and remove them from
service without having to invoke the brahmashastra of impeachment. The
judiciary cannot evolve such an alternative system by itself- it must come down
to ground and sit with the Executive to find the solution. And it must accept
that too much power ultimately self- destructs, and takes all with it.
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