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The Crisis in the Judiciary

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is an advocate based in Bengaluru and a visiting fellow at the Vidhi Centre for Legal Policy.

Having sentenced JusticeC S Karnan to imprisonment for criminal contempt of court, the Supreme Court cannot afford to drift back into complacency about the judiciary’s troubles. The systemic problems with judicial appointment and accountability become obvious when we examine other instances of misbehaviour by judges thathave wrecked damage to the judiciary’s credibility.

In sentencing Justice C S Karnan to six months’ imprisonment for contempt of court on 9 May, the Supreme Court has caused itself immense damage. Even apart from the obnoxious pre-emptive media gag imposed in the order, the Court’s attempt at disciplining Karnan has restored confidence neither in the judges, nor in the institution itself. Having relieved Karnan of all administrative and judicial responsibilities in the first hearing itself, the Court tried to impose its authority by escalating the matter. Instead, it has been made to look foolish as its orders have moved further away from the law and have been mocked on a regular basis by Karnan himself.

As bizarre and unprecedented as the proceedings regarding Karnan are, they also serve to highlight the underlying systemic problems in the higher judiciary. Karnan is only the latest judge in the recent past to have had a run-in with the law. In just the last decade or so, we have seen two high court judges, JusticeP D Dinakaran and Justice Soumitra Sen, face impeachment hearings in Parliament for corruption and abuse of power, and resign before the final impeachment motion was passed (Press Trust of India 2011a, 2011b); one retired high court judge, Justice Nirmal Yadav, facing trial before in a Central Bureau of Investigation case concerning bribery (Press Trust of India 2014); and another judge, Justice C V Nagarjuna Reddy, against whom impeachment proceedings have begun for having allegedly discriminated against a Dalit judge in the state subordinate judiciary (Misra 2016). It is worth recalling in detail the failings that each of these instances have exposed.

Justice P D Dinakaran, judge at the Madras High Court and then Chief Justice of the Karnataka High Court, was all set to be elevated as a judge to the Supreme Court in 2009, when it came to nationwide attention that he had encroached on government land and had acquired land far beyond the statutory limits under Tamil Nadu law. Though the Supreme Court withdrew judicial work from him, he was nonetheless transferred from Karnataka High Court to Sikkim High Court, after which impeachment proceedings were begun. He resigned from office before the impeachment motion was passed, but the whole situation leaves open a troubling question: even though allegations relate to a time when he was a judge, would they have been taken seriously if he was not about to be elevated to the Supreme Court?

Justice Soumitra Sen, a judge at the Calcutta High Court, stood accused of having misappropriated money in his capacity as official receiver, and was still in possession of it when he had been appointed as a judge to the Calcutta High Court. Even after an adverse judgment was passed against him in 2006, he continued in office until the Supreme Court’s “in-house procedure” recommended impeachment, and he resigned after an impeachment motion was passed by the Rajya Sabha in 2011.

Then, we have the tragicomic farce that is Justice Nirmal Yadav’s case, a judge who is only facing trial because the bribe allegedly meant for her was delivered at the house of another judge with a similar name, who then reported the matter to the police. Despite the Supreme Court’s inquiry committee and the Punjab government finding that there was enough material to suggest that she had indeed received the bribe to pass a favourable order in a case, the then Chief Justice of India K G Balakrishnan refused to grant sanction for prosecution based on an opinion given by the then Attorney General for India. It was only after her retirement in 2010 that the subsequent Chief Justice of India, S H Kapadia, granted sanction for prosecution and she is currently facing trial.

Two ongoing cases, not as much in the limelight as the Karnan fiasco, but just as serious nonetheless, highlight that the rot within the judiciary persists.

In December 2016, 61 Rajya Sabha members of Parliament (MPs) signed a letter to begin impeachment proceedings against Justice C V Nagarjuna Reddy of the Hyderabad High Court over allegations of caste-based mistreatment of Rama Krishna, suspended Principal Junior Civil Judge of the Andhra Pradesh subordinate judiciary (Manoj 2016). The allegations relate to physical violence, harassment, and even abuse of office to settle scores with the judge for allegedly not favouring Justice Reddy’s relative in an ongoing case (Misra 2016). Despite a complaint made to the Chief Justice of India to activate the in-house procedure against Justice Reddy, no action was taken until the Rajya Sabha MPs moved the motion.

On the other hand, the in-house procedure has been activated by the Supreme Court against two judges of the Odisha High Court, who are alleged to have misused their office for personal benefits (Mishra 2017). There has been little coverage of the proceedings and the Court has not exactly been forthcoming about the details of the cases. It remains to be seen as to what action, if any, will eventually be taken.

Flawed Procedures

Other scandals have raised questions about the integrity of the judiciary without necessarily resulting in any action: the allotment of plots to judges in the Karnataka High Court; the Ghaziabad provident fund scam that may have involved Allahabad High Court and Supreme Court judges; the Kalikho Pul suicide letter levelling allegations against judges of the high court and Supreme Court, among others.

There have been scandals concerning judges in the past too, but to have these many (Karnan included) in this short period of time must raise uncomfortable questions for the judiciary with which to grapple. Questions arise about the appointment process and the internal mechanisms for disciplining errant judges, and not very comfortable ones at that. Is the collegium system of appointment capable of determining suitability of judges? Are internal grievance mechanisms, closed to the outside public, sufficiently capable of enforcing probity among judges? Can judges be trusted to pick honest judges and act against dishonest ones in the system? One would think that a judiciary intent on protecting its integrity as an important institution in India’s constitutional context would address these questions seriously.

Unfortunately, what we see is the very opposite of that.

After striking down the National Judicial Appointments Commission amendment and law (Supreme Court Advocates on Record Association v Union of India 2016), the Supreme Court grudgingly admitted that there needed to be some reform of the collegium method of appointments in the judiciary, including improvements in transparency and institutional support. This, however, was not backed by any action, but by a passing of the buck to the union government to draft an improved memorandum of procedure (Supreme Court Advocates on Record Association v Union of India 2015). What has followed since has been a farce played out through leaks and whispers as the central government and the Supreme Court have tussled behind closed doors. Nearly 18 months after the Supreme Court’s order, we are no closer to seeing a final draft of the memorandum of procedure that attempts to address the deficiencies of the collegium method of appointments.

Likewise, the in-house procedure has seen no change or reform in the light of recent events. It does little to answer the charges of opacity in the judiciary’s functioning, and is unlikely to inspire confidence in its ability to enforce accountability on the part of judges. The more serious allegations seem to entirely slip through the cracks when it comes to the in-house procedure. In the case of Justice Reddy, the in-house procedure was not even allowed to be accessed by the aggrieved parties.

Testing Times

Why does any of this matter? For all its flaws, an independent judiciary ready, willing, and able to do its constitutional duty without fear or favour—even in the absence of popular support or against the almighty executive—is what stands between constitutional democracy and naked tyranny; whether it is the tyranny of a minority or the majority. The Indian higher judiciary is going through one of its most testing times. Its credibility is being called into question, doubts are being raised over its independence, and resentment is growing over its inefficiency. No matter how good the rules or the institutional mechanisms, when it comes down to it, everything rests on the men and women on the bench. Are the men and women chosen for this important duty up to the challenges of the office? Can they be trusted to uphold constitutional values when called upon to do so? And, even if one of them fails to uphold the highest standards required of the office, will the system correct itself and ensure it does not happen again?

The order sentencing Karnan to imprisonment does not end the matter. Probably, not as far as Karnan himself is concerned, and definitely not as far as the larger, systemic failings of the judiciary are concerned. Karnan may have been an outlier as far as his behaviour is concerned, but as in the examples of other judges, the system that put him there and enabled him still remains. It remains to be seen whether the judiciary understands the true nature of the problem, or will prefer to remain in denial believing that they have “handled it.”

References

Manoj, C G (2016): “Andhra Pradesh, Telangana HC: 61 Rajya Sabha Members Seek Impeachment of Judge,” Indian Express, 6 December, viewed on 13 May 2017, http://indianexpress.com/article/india/rajya-sabha-members-seek-impeachment-of-judge-telangana-andhra-pradesh-high-court-dalit-court-victimisation-4412350/.

Misra, Vasudha (2016): “Ouster in the Offing for High Court Judge Justice Nagarjuna Reddy?” Bar and Bench, 6 December, viewed on 13 May 2017, https://barandbench.com/ouster-offing-high-court-judge-justice-nagarjuna....

Mishra, Prabhati Nayak (2017): “Exclusive: Two Sitting Judges of Odisha HC Face In-house Inquiry,” Live Law India, 5 February, viewed on 13 May 2017, http://www.livelaw.in/exclusive-two-sitting-high-court-judges-odisha-hc-faces-house-inquiry/.

Press Trust of India (2011a): “Justice Dinakaran Resigns as Sikkim High Court Chief Justice,” DNA, 29 July, viewed on 17 May 2017, http://www.dnaindia.com/india/report-justice-dinakaran-resigns-as-sikkim....

— (2011b): “Justice Soumitra Sen, Facing Impeachment, Resigns,” Times of India, 1 September, viewed on 17 May 2017, http://timesofindia.indiatimes.com/india/Justice-Soumitra-Sen-facing-imp....

— (2014): “Charges Framed against Nirmal Yadav in Cash-at-judge’s-door Scam,” Hindu, 18 January, viewed on 17 May 2017, http://www.thehindu.com/news/national/other-states/charges-framed-agains....

Supreme Court Advocates on Record Association v Union of India (2015): SCC Online, SC, 1322.

— (2016): SCC, SC, 5, p 1.

Updated On : 19th May, 2017

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