Never ever has a sitting judge of the high court been arrested and sent to jail. But on May 9, the Supreme Court of India made judicial history. It ordered the arrest and imprisonment for six months of the controversial Calcutta High Court Judge, Justice CS Karnan. This incident, where judges traded arguments in full public view and questioned each other’s sanity, has damaged the judiciary’s reputation. A reputation which is already at an all-time low, courtesy recent controversies such as those involving Justice Markandaya Katju, Justice Soumitro Sen and Justice P D Dinakaran.
This extraordinary development has once again brought into focus the need to have a mechanism – a half way house — to deal with problems of delinquency among judges, outside the impeachment process. It becomes even more important because of rising instances of misconduct among judges and the inadequacy of mechanisms to discipline them.
Under the current regime, there is an informal practice of appointment of committee judges to look into charges of indiscipline and impropriety by judges. But this mechanism is found to be wanting as a judge found guilty of misconduct cannot be removed from office or suspended.
Even the tried and tested method of transferring erring judges to different high courts has proved to be ineffective.
An attempt to deal with the problem was made by the government in 2006, when it enacted the Judges Inquiry Bill, proposing a committee of judges to deal with instances of misbehaviour by judges.
However, it was shot down by the parliament on the premise that judges will be judges in their own causes and the process will not be fair. In the absence of a constitutional amendment and out-of-the-box thinking by judges, this problem of delinquency threatens to blow up in the face of the judiciary.
It will be a better idea to have a bill that gives more power to judiciary to deal with its in-house problems.
The only way forward from here will be an amendment in the constitution and carving out of a half-way house between the impeachment process and the informal mechanism to persuading erring judges to retire voluntarily and contempt proceedings like the one in Justice Karnan’s case.
No doubt Justice Karnan’s actions have been unparalleled and extremely contemptuous but the Supreme Court may have just set a wrong precedent. The constitution guarantees independence to high courts by clearly defining the appointment and removal process of judges. But after the order in this case, apprehensions are bound to cloud the minds of high court judges and could have the effect of compromising their independence.
Can we from here on think of high court judges being independent of the Supreme Court?
Besides, what makes Justice Karnan’s case interesting and unprecedented is the fact that not many countries in the world have faced this kind of a problem. And the ones that faced it have dealt with the problem by persuading the judges to resign. The example of noted British judge Lord Dennings comes to mind. He resigned as a judge after charges of racism were made against him.
However, these informal methods to deal with delinquency in India have failed.