The appointment is murky and opaque Trying to tame your creation!
The Tumultuous Appointment Process
In India, appointment of judges has a tumultuous history. Till 1971, the Chief Justice of India’s recommendation was treated as gospel by the government. In the 1980s, the Centre tried to exercise more control over the appointment process by seeking more power to recommend judges to the High Courts and the Supreme Court.
A significant change occurred in 1993 with the Supreme Court’s judgment in SCAORA v Union of India, which brought the appointment of judges (especially senior most top court judges) under the judiciary. Today, the appointment process follows the recommendation by the five senior most Supreme Court judges (including the Chief Justice of India), which is binding on the Centre that issues the formal order of appointment. Known as the ‘collegium method of appointment’, the process is utterly opaque and arbitrary, causing deep dissatisfaction all around.
The Parliament’s crude attempt at ‘reforming’ this unsatisfactory system by replacing it with the National Judicial Appointments Commission was struck down by the Supreme Court in 2015 as being a violation of the Constitution’s basic structure.
Karnan was appointed as an additional judge of the Madras high court in 2009, upon the recommendation of the collegium of judges headed by then-Chief Justice of India, KG Balakrishnan. Karnan’s name was, in fact, first recommended by then-chief justice of the Madras high court, AK Ganguly. These are the only undisputed facts about Karnan’s elevation to the Madras high court. As with other judicial appointments, there is no official record as usual of the basis on which he was considered fit for appointment, what criteria were examined and whether any material against his elevation was considered and rejected.
While the Constitution does not prescribe any criteria beyond 10 years of legal practice and citizenship for a lawyer to be appointed as a High Court judge, in practice it’s usually at least 15 years and someone with a reasonably well-established practice in the High Courts. (This is not always followed, as many successful lawyers do not want to give up a lucrative practice for harsh work conditions and worse government pay.)
Ganguly himself, now retired, when asked by the media about Karnan, could not recall why Karnan was elevated in the first place. Karnan’s bio on the Calcutta HC website states that after graduating from Madras Law College in 1983, he practiced civil law in the Madras High Court, was appointed legal adviser for Metro Water, was government advocate for the state and later, the Centre. However, a brief search of legal databases shows Karnan does not seem to have had a thriving practice or been involved in important cases before the Madras High Court. Ganguly has reportedly said that Karnan was elevated keeping in mind the need to have Dalit representation in the higher judiciary. “He was representing a particular caste that should have been represented in the choice of judges. Therefore, I thought he should be considered,” he said.
The representation of Dalits has been and continues to be abysmally low in the higher judiciary. The most reliable figures are from 2002, when it was found that there was only one judge in the Supreme Court and only 25 out of 625 HC judges who belonged to the Scheduled Castes. No Dalits currently serve in the Supreme Court, and there are no reliable figures maintained either by the Supreme Court or the Department of Justice on the representation of Dalits in the higher judiciary. Anecdotally, however, it is unlikely that more than five percent of High Court judges are Dalits.
Integrity Under the Scanner
The controversy surrounding Karnan is part of a larger problem in the judiciary rather than a one-off problem. Late in 2016, the Supreme Court initiated contempt proceedings against former SC judge Markandey Katju for his ill-thought-out comments against judges. Multiple judges of High Courts and the Supreme Court have faced accusations of sexual harassment. In 2011, two High Court judges, PD Dinakaran and Soumitra Sen, faced impeachment proceedings for corruption and abuse of office, but resigned before removal. Nirmal Yadav of the Punjab and Haryana High Court also faced charges framed by a CBI court for allegedly receiving a bribe as a sitting judge in 2008.
Credibility is a problem that is plaguing the judiciary, and judges make up a veritable chunk of it. Never mind that it’s quick enough in punishing disobedience through contempt, the judiciary will always find it hard to command the respect of citizens if it’s not run honourably and by the right men and women. The blame for the poor choice of judges in the 1970s and 80s could perhaps be attributed to the government, but currently the judiciary lacks such excuses.
Even admitting that sometimes a poor appointment might have been made, there has been no effort to create a transparent mechanism to discipline judges who overstep the lines of propriety. The in-house procedure to examine and act on complaints against judges is seldom used and, in any case, works with little transparency. Like with appointments, the whole process is shrouded in secrecy with corridor gossip substituting for facts and informed debates. Those with legitimate grievances against a judge have little recourse from the judiciary itself, or for that matter, any other institution.
Similarly, it must also be difficult for Karnan to be caught in such a caste-lopsided institution, and it remains to be seen how much and to what extent Karnan will fight the SC’s latest move. The next date of hearing in the SC is 10th March, and he is due to retire on 12th June this year.
The contempt case is still sub judice but it’s not clear what the Supreme Court’s endgame in these proceedings is. Its powers under the contempt jurisdiction are vast but do not extend to removing a High Court judge, something that can only be done through impeachment by the President. Whatever they choose to do in the context of Karnan, the SC judges must be aware that there is a larger problem that they cannot wish away — that of a judiciary whose credibility is slowly ebbing away.
http://m.hindustantimes.com/india-n...r-judiciary/story-nDgSk7GbYVaJSYyTMpNgQK.html
The solution ? Maybe the National Judicial Appointment Commission
Here is a balanced article on Judicial Appointment by Raju Ramachandran I am his சித்தி
http://www.thehindu.com/opinion/lead/the-importance-of-the-outsider/article5062035.ece