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Satya Prakash
Tribune News Service
New Delhi, July 5
Two of the seniormost judges of the Supreme Court have come down heavily on the collegium system for its failure to prevent a person like former Calcutta High court judge KS Karnan from being appointed as a judge, saying there was a need to revisit the process of judicial appointments.
“This case, in our opinion, has importance extending beyond the immediate problem (contempt of court),” said Justice J Chelameswar and Justice Ranjan Gogoi said in a separate but concurring verdict.
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The main verdict authored by Chief Justice of India JS Khehar gave detailed reasons for sentencing Justice Karnan to jail for six months.
“This case highlighted two things, (1) the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels; and (2) the need to set up appropriate legal regime to deal with situations where the conduct of a Judge of a constitutional court requires corrective measures - other than impeachment – to be taken,” the two judges said.
Justice Chelameswar has been a criticising the opaque collegium system and even refused to take part in its meetings. Justice Gogoi is to become the CJI in 2018. Both are part of Supreme Court Collegium which appoints judges of the higher judiciary.
This comes at a time when the government and the collegium are at loggerheads over the Memorandum of Procedure for appointment of judges of constitutional courts.
“The conduct of the contemnor (Justice Karnan) ever since his elevation to the bench has been controversial. Obviously, there is a failure to make an assessment of the personality of the contemnor at the time of recommending his name for elevation. Our purpose is not to point fingers to individuals who were responsible for recommendation but only to highlight the system’s failure of not providing an appropriate procedure for making such an assessment,” they said.
“What appropriate mechanism would be suitable for assessing the personality of the candidate who is being considered for appointment to be a member of a constitutional court is a matter which is to be identified after an appropriate debate by all the concerned – the Bar, the Bench, the State and Civil Society. But the need appears to be unquestionable,” they noted.
“We are only sad to point out that apart from the embarrassment that this entire episode has caused to the Indian Judiciary, there are various other instances (mercifully which are less known to the public) of conduct of some of the members of the judiciary which certainly would cause some embarrassment to the system,” the two judges said.
Almost two months after a seven-judge bench headed by CJI Khehar convicted Justice CS Karnan (since retired); the Supreme Court on Wednesday finally came out with its detailed verdict, justifying its unprecedented decision.
This should never happen: CJI on Karnan issue
“This has never happened. This should never happen,” said the CJI who authored the main verdict concurred by the rest six judges on the bench who convicted Justice Karnan and awarded six-month jail term on May 9 for his utterances against judges of the top court and the Madras High Court.
“We have no hesitation in concluding, that the actions of Shri Justice C.S. Karnan constituted the grossest and gravest actions of contempt of Court. He has also committed contempt, in the face of the Court. He is therefore liable to be punished, for his unsavoury actions and behaviour. We are satisfied that he should be punished for his above actions, with imprisonment for six months,” the verdict read.
However, Justice Chelameswar and Justice Gogoi raised serious questions about the appointment process and the need to deal with deviant judges.
“The framers of the Constitution were people of a great sense of patriotism and maturity, men and women who maintained high standards of civic morality. Obviously, they expected those who are to be chosen for the higher constitutional offices or to be appointed to public service would be chosen by assessing their suitability (efficiency and integrity) by employing appropriate standards.
“The makers of the Constitution were conscious of the fact that ascendance to higher offices need not necessarily always guarantee rectitude and the incumbent of any constitutional office could resort to behaviour inconsistent with the nature of the office and standards of conduct expected. Thereafter, provisions were made in the Constitution for impeachment of holders of various constitutional offices starting from the President of India.
“When it came to the members of the constitutional courts equally, it was visualised that there can be such occasions. But the standards and procedure for impeachment of judges are much more rigorous for reasons obvious. There can be deviations in the conduct of the holders of the offices of constitutional courts which do not strictly call for impeachment of the individual or such impeachment is not feasible. Surely there must be other ways of dealing with such cases. The text of the Constitution is silent in this regard. May be it is time for the nation to debate this issue,” they said.
Regarding the allegations levelled by Justice Karnan against judges, the two judges said: “If there is any truth in any one of those allegations made by the contemnor against any one of the judges named by him, it is too serious a matter and requires appropriate action in accordance with the constitution and the law in the interest of both the purity of the judiciary and the constitutional governance of this nation.”
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