The two judges, who concurred with the main judgement passed by a seven-judge bench headed by Chief Justice J.S. Khehar, said this case highlighted the need to set up an appropriate legal regime to deal with situations where the conduct of a judge of a constitutional court requires to take corrective measures, other than impeachment.
“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," they said.
Justices Chelameswar and Gogoi said the conduct of Justice Karnan during pendency of the proceedings constitutes criminal contempt falling both under the heads of scandalising the court as well as interference with the proceedings of the apex court. “In our view, the contemnor is therefore liable to be punished for the contempt of this court," the bench said.
“This case, in our opinion, has importance extending beyond the immediate problem. This case highlights two things, (1) 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; (2) 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," it said.
Ironically, justice Chelameswar was a part of five-judge constitution bench in which he was the lone dissenting judge who has held as valid the appointment of judges through the National Judicial Appointment Commission (NJAC) Act. The Act was struck down by the apex court.
In the minority judgement delivered by him, he had found fault with the existing mode of appointment of judges for higher judiciary through collegium system. In the recent past, when there was a tussle between the judiciary and the executive over the appointment of judges, he had reportedly skipped the meeting of the collegium and has been insisting that there should be reasoning given by the judges in the collegium on selection and rejection of judges.
While writing the judgement for himself and justice Gogoi, justice Chelameswar said there is no doubt that such conduct on the part of justice Karnan has brought “disrepute to the judicial system and has the potential of shaking the confidence of the average citizen in the system".
The two judges said justice Karnan has not shown the slightest remorse which could be a mitigating factor and such conduct and action, if tolerated, would certainly reflect an element of weakness in the system and no such weakness can be allowed to enter the system.
They said since his elevation to the bench, justice Karnan’s conduct has been “controversial" and “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 at 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. 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 bench said.
It further said it was “only sad" to point out that apart from the embarrassment that this entire episode has 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".
It said 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," it said.
The bench said that the makers of the Constitution were conscious of the fact that ascendance to higher offices need not necessarily always guarantee rectitude and the incumbent of any constitutional office could resort to behaviour inconsistent with the nature of the office and standards of conduct expected.
“Thereafter, provisions were made in the Constitution for impeachment of holders of various constitutional offices, starting from the President of India," it said, adding that when it came to the members of the constitutional courts, it was visualised that there can be such occasions. But the standards and procedure for impeachment of judges are much more rigorous for reasons obvious, it said.
“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," the bench said.
Justice Karnan’s name was recommended for elevation by the Collegium of the Madras High Court comprising the then chief justice and two senior most judges. He was appointed on 30 March 2009.
Referring to the laws in foreign lands, the court said that Great Britain, from where India has adopted the present legal system, abolished the offence of criminal contempt on the ground of scandalising the court pursuant to the recommendation of their Law Commission. It said that in this regard, the American law appears to be more liberal with greater emphasis on freedom of speech but the apex court does not wish to undertake any elaborate analysis of it.
“However, in India scandalising the court is still recognised to be an act constituting contempt of court. Though what is the activity which constitutes scandalisation of the court is not defined or very precisely explained in the... cases, individuals were held guilty of contempt of court on the ground that their deeds scandalised the court," it said.