- Dear All,
- The judgment and order of the Hon’ble Supreme Court of India against Hon’ble Justice C.S.Karnan is analysed in terms of the conduct of Justice C.S.Karnan in many ways, ethically, institutionally and practically.
- The judgment and convicting of Hon’ble Justice C.S.Karnan has been received by the nation with mixed response. The ethical, legal and equitable angles are discussed threadbare. But in the meantime, one of the major consequences of the order is missed by many. Rather this shall be termed as judges 6 case, by which the removal of judges of the High Courts and Supreme Court are also been erased from parliamentary authority and vested with the senior most judges of the Supreme Court of India.
- Through judges-2 case, [1] by way of a constitutional amendment executed under Article 32 of the Constitution of India, the Senior most judges of the Hon’ble Supreme Court of India vested in themselves the right to appoint judges to the Supreme Court itself, and to various High Courts, including the Chief Justice of India. The judges-3[2] case re-affirmed the above position. Judges-4 case[3], was dismissed in limine, being one challenging the authority of the collegium and it's constitutional sanctity, without going into the merits.
- The Judges-5 case [4] further went ahead to nullify the parliamentary Act and constitutional amendment, and reinstated the unconstitutional collegium, sidelining all the other judges of Supreme Court of India itself, except the seniormost 5 judges thereof. There are two classed of judges, by way of their authority to appoint the judges and those who do not posses those authorities.
- The transfer of powers to appoint judges to amend the constitution, to enact law in the realm of judiciary, all are transferred from executive and parliament to the judiciary, which is controlled by a handful of families through their progenies, kith and kin. The instant judgment is in furtherance of such transfer of powers.
- The independence of judiciary is protected through the protection of office and it's authorities, as envisaged by Articles 124(4) , 124(5)& 217(1)(b) of the Constitution of India. The protection is not only in relation to the protection of salary and allowances. The protection essentially includes the protection to the office and it's authorities. A High Court judge is protected against any reduction in his authorities except by way of impeachment and all his orders are valid and bound to be executable, until unless set aside by appellate proceedings. For proven misbehaviour or incapacity, constitution provides for the single remedy of impeachment, nothing else. And impeachment can only be effected by special majority of the parliament of India.
- But unfortunately, by way of the instant order, the Hon’ble Supreme Court of India has transferred such powers of removal of judges also from parliament to itself, it's seniormost 7 judges. Virtually The Hon’ble Supreme Court of India by it's order removed Justice C.S.Karnan from the authority and seat of High Court judge, even though his salary is protected under Article 221, without work, certainly. It's equivalent to removal of a judge itself, nothing less, nothing more. What cannot be done directly is done indirectly. That’s the only difference.
- If tomorrow, the Hon’ble Supreme Court of India prevents and restrains the President of India and even Parliament from functioning or even acting under the constitutional authorities and responsibilities vested in them, even place them under arrest, what will be the fate of nation as a republic and democracy? The Consequence of this order is disastrous, if allowed to be a law of the land or even a precedent under Article 141 of the Constitution of India. The draconian order of media censorship is already executed through the order, which has existed only during the dark days of emergency or the colonial Rule. People of India are prevented from knowing even the truth/facts.
- Now this is judges-6 case, through which removal of judges, including placing the judges in jail is vested by the seniormost judges of Supreme Court of India, being transferred from the Parliament of India. This is virtually another amendment to the Constitution of India without any authority. All the other judges, including the remaining judges of Supreme Court of India and all High Courts have now become virtually subordinate to the seniormost judges of the Supreme Court of India. So far only their elevation and promotions were dependent upon the collegium and seniormost judges. Now even their very existence as judges are also dependent upon the authority of the seniormost judges of the Supreme Court of India. Their appointment, protection, existence and securing their judicial functioning are all subject to the virtual control of the Supreme Court Collegium, and the independence the judges and judicial functionaries enjoyed and the immunity from arbitrary removal are vanished forever. Parliament and constitution remains to be a silent spectator, stripped of all it's authorities and protection.
- The precedent is dangerous to the nation and it's existence itself. The constitution cannot remain as some dead letters, which can be amended and discarded at the sweet will of the Supreme Court of India. ‘Inch by inch and step buy step’ all political authorities are getting vested with the senior most judges of the Supreme Court of India, who are appointed by themselves and accountable to nobody. If parliament and people together with media fails to act even at this stage to restore the constitutional supremacy, the nation will be forced to pay hefty price in the days to come.
- 10/05/2017
- Adv.A.C.Philip,
- Jt.Secretary, National Lawyers’ Campaign for Judicial Transparency and Reforms.
[1] Supreme
Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441
[2]
Reference By President of
India Under Article 143(1) Of The ... vs Unknown, AIR 1999 SC 1, RLW 1999 (1)
SC 168, 1998 (5) SCALE 629, 1998 Supp 2 SCR 400
[3] Suraz
India Trust Vs. Union of India & Anr.
(2012) 13 SCC 497-B
[4] Supreme Court Advocates-on-Record Association
v. Union of India and Others (JT 2015 (10) SC 1), 2015(5)GLT(SC)12, 2015(11)SCALE1.
