Separation of powers between various organs dispute redressal mechanisms and institutions
Structure, organization and functioning of the Executive and the Judiciary
Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.
In news:Supreme Court of India sentenced a HC judge to six month’s imprisonment on charges of contempt of court. It is the first case of a serving judicial officer being sentenced to jail over a face-off with upper judiciary on an alleged corruption matter. This order came after justice Karnan sent CJI and six others to five years in jail under SC/ST Act.
This started when justice Karnan barged into court room of a division bench of madras HC which was hearing a PIL and he started arguing case in favour of SC/ST candidates. Justice karnan also abused three justices of Madras HC. He always maintained that as he was Dalit, there was a bias against him. At that time, Madras HC Chief Justice had written to CJI that it was an irresponsible conduct and asked CJI to transfer him. This should have been taken note of and conclude that it was not a way in which judge can behave. However, such an action or note was not taken.
Not followingset procedures
Justice Karnan was punished with six months of jail on charges of contempt of court. It is seen that punishing him amounts to his removal. Does SC have the jurisdiction to pass an order which results in removal of a judge from the office of being the judge? The answer is no. Only the parliament has the power under art 217.
Argument 1:Power to remove the judge is with parliament but the power to punish for contempt of court is with court. So it was within the purview of SC to sentence justice Karnan as it is a criminal contempt and not a civil contempt.
A judge is not immune from the criminal law. If a judge commits murder or rape and is convicted for the same, the punishment conferred upon him shall amount to removing him from being a judge. If the parliament doesn’t impeach him even after he has committed a crime and presence of evidence, it is preposterous.Letting such judge continue his duties is damaging the institution of judiciary.
Argument 2:There is a procedure prescribed by law for prosecuting a judge. No effort was made to follow that procedure even if he was alleged to commit a criminal act. There should have been an application for permission to prosecute him which was not done.
If the SC steps in and says it is taking contempt of court and removing him from judicial work will be a way of circumventing the constitution. There are many examples where judges commit acts of misconduct. If a judge takes money for the case pending against it, that would also be contempt of court. There have been judges who have been accused of sexually harassing the women and they are still sitting as judges and dispensing justice. Here, no contempt of court action is taken against them.
So not only the power but the manner in which it is exercised needs to be questioned and it is arbitrary without any foundation in the constitution.
The problem at the roots
This case is part of a larger problem. The systemic failure happened when he was appointed. This points out the shortcomings of the collegium system- the method of appointment of judges, which is completely opaque. Three judges collegium recommended his name, SC collegium approved and he was appointed. This was the first mistake.
Second, when the justice committed misconduct in madras HC and there were several instances where he repeated such things, the SC judges and collegium should have taken note of it. A committee should have been set up and the matter had to be inquired into and if it was a misconduct, they should have recommended to the government for impeachment procedure. Here also nothing was done and instead transferred from Madras HC to Calcutta HC. Even there, there were reports of his misconduct.
Hence, there were enough opportunities for SC judges, collegium in particular to conclude his misconduct as a judge and fit to be removed. Thus, the manner in which the entire thing has been handled by the SC is not much appreciable as
Power of contempt cannot be used to remove a judge
Media has been gagged and also the judge in question
Collegium system in judiciary
This system of appointment has stirred many issues and raised concerns. Having a common entrance exam like bureaucracy is not going to improve the system too. The district court judges are appointed by the HC of that particular state. For this, there should be mixing of judges from other states also in matter of appointment of district court judges.
Judiciary in India is not only SC and HC. They are a small part of actual quantity of judges which include magistrates, sub-judice, senior sub-judice, additional session judge etc. Thus, it needs to be assured that this area of selection is perfect for most people, the justice is the district court they see.
The SC has come emphatically to the conclusion that prima facie it appears that the judge requires medical assistance. When there was no headway on it, he was sentenced to jail. But sending him to jail for such reason is setting a wrong precedent. If in future, if an SC judge does something of the kind justice Karnan has done, will SC judges decide the same fate then too? The only course available to collegium was that they should have recommended it to parliament.
Damage to independence to judiciary
The HC is not subordinate to SC in any sense. The signal that is put out by this judgement is that SC can sit in judgement over the conduct of an HC judge which means it is threatening the independence of judiciary. After this, any other judge may live in terror of accusation of contempt of court and thereby terrorising the independence of judiciary.
The constitution worked hard to ensure it by ensuring a security of tenure for it and that is why procedure of a removal of a judge is so difficult.
It is a different matter that India doesn’t have a system of making a complaint against the judge short of impeachment. There should be a law where it states that SC doesn’t have any right to come to any conclusion prima facie or otherwise about the mental condition of the judge. They can say his behaviour amounts to an act of misconduct but no one can be compelled to undergo a medical examination. If a judge refuses to undergo medical examination, he has done nothing wrong as the SC itself has said that for any procedure to be performed on you, there is a requirement of informed consent of the person who has to undergo such procedure.
The judiciary is not above law. Independence of judiciary is not a license to abuse. If a judge commits a crime, then he cannot be let go for the sake that he has to be removed only by the parliament through impeachment. The record of impeachment of judges is very poor as none of the judges have been impeached so far by parliament. Hence, the judge considers him above law. If such becomes the case, then it will send a message that there are two kinds of laws-
for an ordinary man which writes articles or conducts a survey on probity of judges, he is threatened with contempt. Either he has to apologise or go to jail
a judge can do anything.
However, judiciary ego shouldn’t pep up contempt proceedings. Contempt needs a little bit of benevolence also. Frustration is due to situation and not necessarilydisrespect.
This is the time where lot of institutions of society are being eroded. At such point, one turns to SC to uphold the laws of land. If it is found that SC is itself giving go-byes to the laws of the land, it is unfortunate. Thus, utmost care has to be taken in such crucial matters and maintain the dignity of the institution.
Connecting the dots:
‘Independence of judiciary does not mean independence of judge’. Critically analyse.