Many members of the judiciary have questioned the Constitutional validity of the SC's order.

Justice CS Karnan case Does the Supreme Court have powers to remove a sitting HC judgeJustice CS Karnan; PTI
news Judiciary Wednesday, May 10, 2017 - 16:28

In an unprecedented ruling in the history of Indian judiciary, the Supreme Court on Tuesday held a sitting High Court judge, Justice CS Karnan of the Calcutta HC, guilty of contempt of court.

The apex court sentenced him to six months imprisonment and also ordered a media gag on his statements.

The seven-judge bench headed by CJI JS Khehar said that Justice Karnan should be treated as an "ordinary citizen" and not like a sitting judge in this case. Justice Karnan was set to retire on June 11 this year.

Can the Supreme Court of India remove a sitting High Court judge?

Many members of the judiciary have since questioned the Constitutional validity of the SC's order stripping a sitting judge of his duties. 

It was in February that the SC issued a contempt notice against Justice Karnan for accusing several senior judges of corruption. It had then directed Karnan to hand over all files relating to his judicial and administrative functions to the Registrar General of the High Court. The court also barred him from discharging any judicial and administrative functions during the pendency of the proceedings.

On May 1, the top court went ahead and declared all orders passed by Karnan as invalid and directed all courts and tribunals to not take cognizance of directions passed by him.

Senior advocate Indira Jaising has said that the SC's order is constitutionally invalid. "Removal of judicial function is like removing someone as a judge and the Supreme Court does not have the power to do that. It's only Parliament that can remove a judge. This order is not Constitutionally valid," she told TNM.

What does the Constitution say?

According to Article 217 of the Indian Constitution, there are three circumstances under which a High Court judge can cease to hold office.

Firstly, if they resign.

Secondly, they can be removed by an order of the President passed after both Houses of Parliament vote for their removal on grounds of proven "misbehaviour" and "incapacity". And this vote must be by a two-thirds majority, where at least 66% of the member who are present and voting must vote for their removal.

Thirdly, the judges will have to vacate their offices if they have been appointed as a judge of the Supreme Court or have been transferred to another High Court.

Former cases

In 2011, Sikkim High Court Chief Justice P D Dinakaran had submitted his resignation two years after the Rajya Sabha admitted the motion for his removal from office. The former judge, who was earlier with the Karnataka High Court, had been accused of corruption and land grabbing.

The same year, Justice Soumitra Sen of the Calcutta High Court submitted his resignation to avoid the ignominy of becoming the first judge to be impeached by Parliament. The Rajya Sabha then had already passed a motion for his removal on grounds of misconduct and his resignation came just days before the Lok Sabha was to take up an impeachment motion against him.

Sen was only the second judge to face impeachment proceeding in India since Independence.

The first judge in India against whom an impeachment proceeding had been initiated was V Ramaswami, a former Supreme Court judge.

The case dates back to 1993 and V Ramaswami emerged unscathed because the Congress (I) MPs abstained from voting in the impeachment motion in the Lok Sabha.

The motion lapsed and Ramaswami retired in 1994.

More recently, in 2015, Vice President Hamid Ansari set up a three-member committee to initiate impeachment proceedings against Madhya Pradesh High Court Judge SK Gangele.

Gangele was facing charges of alleged sexual harassment of a former Additional District and Sessions Judge of Gwalior.

The committee that probed the allegations came to the conclusion that there was insufficient material against the judge.

Functioning of the judiciary

It was perhaps keeping the increasing scrutiny of the conduct of judges in mind that the Judicial Standards and Accountability Bill, introduced by the UPA government, was passed in the Lok Sabha in 2012.

The Bill seeks to to lay down enforceable standards of conduct for judges. One of the provisions of the Bill is to set up the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee. This will allow any person to file a complaint against a judge. The committee probing the complaint could even recommend the judge's removal if the allegations were proven.

However, the Bill garnered severe criticism, mostly from the legal fraternity, for seriously undermining judicial independence.

The Bill lapsed after the dissolution of the Lok Sabha in 2014 and reports state that the NDA government is planning to revive it.

In a piece for Scroll.in, Abhishek Sudhir, founder of legal education website Sudhir Law Review, criticised the SC for initiating contempt proceedings against Justice Karnan instead of taking measures to ensure greater transparency in working of the judiciary.

"The Indian judiciary has conflated independence from interference with independence from accountability. It does not subject itself to the will of the people, expressed through their elected representatives in Parliament and government – the very same people whose taxes help pay for their salary, perks and retirement benefits," he writes.

The author added that it was high time the judiciary stopped showing "contempt for democracy".

"Justice Karnan is due to retire next month, but unless the Supreme Court stops showing contempt for democracy by preventing the other organs a democratic country from acting as checks and balances, another problem child will soon be on the way," he stated.  

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