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വായന

06 June, 2017

A tale of judicial misadventures

BRP Bhaskar
Gulf Today

Eighteenth century Swiss political theorist Jean-Louis de Lolme said Britain’s Parliament “can do everything except make a woman a man and a man a woman”. If any limb of the Indian state can be attributed such wide powers it is the Judiciary.

The Constitution provides for a system of mutual checks and balances, but over the years the Judiciary, exercising its exclusive right to interpret the provisions of the statute, has enlarged its powers to a point where virtually it is answerable only to itself.

Under the Constitution, a judge of the superior courts can be removed for misbehaviour or incapacity, but only through a cumbersome process of impeachment in which one house of Parliament acts as prosecutor and the other as judge. Neither the Judiciary nor the Legislature has devised a scheme to deal with infractions that may not amount to misbehaviour.

In 1991, the Bombay High Court Bar Association dubbed four judges as corrupt and its members refused to appear before them. Parliament and the Supreme Court did nothing, and the judges stayed put until retirement without hearing any case.

Since early this year the Supreme Court has been seized of an unusual problem: a serving high court judge, a Dalit, was accusing some of his colleagues of being corrupt and casteist.

The constitutional provisions which permit reservation for the Scheduled Castes (Dalits), the Scheduled Tribes (Adivasis) and other backward classes have never been extended to superior court appointments. As a result, they are grossly under-represented in the judiciary.

KG Balakrishnan, a Dalit from the educationally advanced state of Kerala, became the Chief Justice of India (CJI) in 2007. That was an exceptional case. Neither the Supreme Court nor the Department of Justice keeps a count of persons belonging to the socially and educationally backward classes inducted into the judiciary. At present there is no Dalit in the apex court, and it is believed not more than five per cent of the high court judges, numbering about 650, are Dalits. The community has 15 per cent reservation in the Central services.

CS Karnan, who was appointed a judge of the Madras high court in 2009, became a thorn in the flesh of the establishment when he started complaining that some fellow judges are discriminating against him since he is a Dalit. In 2011, he took his complaint to the National Commission for Scheduled Castes and Scheduled Tribes. There was no action.

Stung by the bee of caste prejudice he encountered, Karnan has been on a judicially incorrect path since 2015. He initiated contempt proceedings against the chief justice of the Madras high court for allegedly belittling him since was a Dalit. When the Supreme Court decided to shift him to the Calcutta high court he stayed the order for his transfer. However, he later apologised for his conduct and took up the new assignment.

The apex court was infuriated when Karnan sent to the Prime Minister last January an “initial list of corrupt judges” which contained 20 names. It initiated contempt proceedings against him, found him guilty and gave him a six-month jail term, the maximum prescribed under the law.

The court ordered the West Bengal police to arrest Karnan forthwith. But he had moved to his home state of Tamil Nadu by then. After a brief meeting with media persons in Chennai he vanished.

A Bengal police party is camping in Chennai to implement the court order but Karan remains untraceable. According to a media report, he is under the protection of a Dalit politician.

Karnan is due to retire on June 12. Retirement will make no difference to his status as a convict. By staying out of sight until then he can spare the nation, which has already witnessed some judicial misadventures, the unedifying spectacle of a serving judge being hauled to jail.

The directives by the Supreme Court and the rebel judge cancelling each other’s orders could have been dismissed as a comic interlude but for the grave damage they have caused to the Judiciary’s image. That Karnan acted without regard for judicial propriety is evident. But, then, so did the seven-judge bench which tried him.

Both were acting as complainant, prosecutor and judge at the same time. While native crudity exposed Karnan’s infirmities, cultivated sophistry effectively hid the other side’s.

Alok Prasanna Kumar, a Fellow of the think-tank Vidhi Centre for Legal Policy, described the court order in the contempt case as an “unconscionable disgrace”. The court had caused much more damage to its dignity and reputation than Karnan could ever manage, he wrote. -- Gulf Today, Sharjah, June 6, 2017.

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