Two among the seven-judge Bench of the Supreme Court that sent former Kolkata High Court judge CS Karnan to jail for criminal contempt have drawn out knives against the existing collegium system of appointing judges.
Writing a separate judgment, in addition to the one written by Chief Justice of India JS Khehar sending Karnan to jail for six months, Justices J Chelameswar and Ranjan Gogoi have said judiciary could have saved the embarrassment caused on account of Justice Karnan if a proper assessment of his personality was made at the time of recommending his name as a High Court judge.
After raising questions on the efficacy of the much-criticised collegium system, the two judges felt an urgent need to set in place a legal regime by which such judges, whose conduct requires corrective measures, could be suitably dealt with by a procedure other than the long-drawn process of impeachment for removal of the judge.
Justice Chelameswar has actively voiced his dissent against the collegium system and has not participated in meetings to select judges despite being the second senior most judge after the Chief Justice of India. His view on the collegium is understandable but what is noteworthy is the word of caution sounded by Justice Gogoi, who is in line to become the CJI.
Also, Gogoi himself is a member of the five-judge collegium for appointing SC judges.
The duo, however, had no doubt that Justice Karnan’s actions deserved to be punished. “There is no doubt in our mind that such conduct on the part of the contemnor has brought disrepute to the judicial system and has the potential of shaking the confidence of the average citizen in the system. He has not shown the slightest remorse which could be a mitigating factor. Such conduct and action, if tolerated, would certainly reflect an element of weakness in the system; no such weakness can be allowed to enter the system,” the two judges held.
But they travelled beyond this episode alone to draw two conclusions - “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 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.”
Making it clear that their intention was not to point fingers at those responsible for elevation of Justice Karnan, Justice Chelameswar, the author of the second judgment said, “Our purpose is…only to highlight the system’s failure of not providing an appropriate procedure for making such an assessment. 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.”
The conduct of the contemnor ever since his elevation to the bench has been controversial, it claimed, adding, “There is a failure to make an assessment of the personality of the contemnor at the time of recommending his name for elevation.” It even referred to other instances that are lesser known to public which would certainly cause more embarrassment to the judiciary.
Realising the damage Justice Karnan caused to the reputation of judiciary both nationally and internationally, the judges held, “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 Constitution, though, is silent on the issue. But the question needs to be resolved by the nation that must debate the same, they held.