Twenty months after the Supreme Court trashed the government’s attempt to replace collegium system of appointing judges with the National Judicial Appointments Commission (NJAC), the “embarrassment” caused by former high court judge C S Karnan in the contempt case has prompted two senior judges of the Supreme Court to call for a more objective system of judicial appointments in India.
Justices J Chelameswar and Ranjan Gogoi pointed out that Karnan’s episode has highlighted the necessity of revisiting the existing system of appointing changes and bringing in necessary reforms to keep the public confidence intact in the judiciary.
Penning down a separate verdict on conviction and six months jail term for Karnan in the contempt case, the two judges emphasised that judges in the Supreme Court and high courts should be appointed on the basis of efficiency and integrity, and by employing appropriate standards.
“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,” said the judgment.
Justice Chelameswar, incidentally, was the lone judge who had favoured doing away with the collegium system when a five-judge Constitution Bench, in October 2015, struck down an amendment to validate the NJAC Act. Terming the quashing of the NJAC Act as unfortunate, he had then asked the judiciary to introspect if the collegium system has become “a euphemism for nepotism” where “mediocrity or even less” is promoted and a “constitutional disorder” does not look distant.
Later in September 2016, Justice Chelameswar decided to abstain from all future collegium meetings and said that the recommendations made by the other four senior-most judges in the collegium, including the Chief Justice of India, should come to him “by circulation” with the minutes of the meetings.
Justice Gogoi, currently the third senior-most judge in the SC, is set to take the helm as the CJI in October 2018, and he would have a tenure of over one year.
Their views of judicial appointments have come at a time when the Central government is to finalise the new Memorandum of Procedure (MoP), which will guide all future appointments. The verdict is likely to bolster the government’s attempt to insert some form of objective criteria of assessment before a candidate is appointed as a judge.
In their verdict, the judges have said that Karnan’s case his case underlines “the need to revisit the process of selection and appointment of judges to the constitutional courts”.
Referring to Karnan’s tenure which was marred by his writing numerous letters hurling accusations of corruption and discrimination at least 33 Supreme Court and high court judges, the SC judges noted that Karnan’s tenure had been “controversial” ever since he was elevated in 2009 as a judge in Madras High Court.
“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,” said the judges.
They added that 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,” held their judgment, adding they were “sad” to point out that apart from the embarrassment that Karnan’s episode 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.”
Their judgment also favoured a mechanism other than impeachment by the Parliament to take action against the errant judges in the SC and high courts, especially since impeachment was a long-drawn process, requiring certain number of law makers to remain present and vote for removal of the judge concerned.
“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,” said the judges.