The order of the seven judge bench of the Supreme Court, gagging media coverage of any comments by Justice C.S. Karnan of the Calcutta High Court is inadequate to spare the blushes of the august court which felt driven to sentence a sitting judge to six months imprisonment for contempt of the apex court, judiciary, and judicial process. May 9, 2017 will long be remembered as a day of ignominy.

The Supreme Court must admit that Justice J.S. Verma’s order assuming power to appoint judges violates the division of powers between the executive, legislature and judiciary and was a usurpation of the Constitution. It survived a quarter century despite flaws because the polity was fragmented due to the decline of one-party dominance symbolised by the Congress.

Now, with Prime Minister Narendra Modi securing a majority in Parliament, it is time to return to Caesar what belongs to Caesar. With a Constitution Bench of the apex court striking down the National Judicial Appointments Commission as unconstitutional, and the Supreme Court refusing to finalise procedures for appointments to preserve its unilateral power, all dialogue should end and the original status quo restored. Government alone should have power to appoint judges; consultations with senior most judges and the main opposition party may continue. Nowhere in the world do judges appoint judges.

The Court appropriated the power to appoint judges in 1993 and vested it with the Chief Justice of India, assisted by two brother judges. In 1998, this was institutionalised in a collegium comprising the Chief Justice of India and four senior-most colleagues. The explicit intent of the Constituent Assembly to not make the Chief Justice of India the final authority was scuttled. Yet most observers concur that the best judges appointed were via appointments made prior to the collegium system!

The Supreme Court’s resistance to reforming the collegium system has culminated in the crisis in which Justice Karnan stands sentenced to jail and police are looking to arrest him. With the judge ‘disappearing’ while directing counsel to seek review of the orders, and then offering to apologise, the drama may persist for another day or two. It will be unfortunate if he is arrested (which had not happened at the time of writing this piece). In the best interests of judicial honour, the Court should accept an apology, rescind the sentence and close this unseemly chapter.

Being a self-created body, the collegium lacks institutional support to make diligent inquiries about the competence, integrity and emotional stability of candidates. It holds informal consultations with other Supreme Court judges regarding candidates from High Courts, or sounds a member of the Bar. The final choice is known only when the file is sent to the Government for formal appointment. Justice J. Chelameswar found the functioning so opaque that he refused to attend meetings, insisting that files be sent to him for consideration, with reasons recorded for considering or rejecting a candidate.

Justice Karnan was appointed to the Madras High Court in 2009, when Justice K.G. Balakrishnan was Chief Justice of India. But when the controversy erupted, the latter shunned responsibility, saying the collegium went with the recommendation of the Chief Justice of the concerned High Court. Ironically, Balakrishnan himself faces a petition in the Supreme Court, which accuses him of having assets disproportionate to his known sources of income.

Justice Karnan has long been controversial. In 2011, he lodged a complaint with the National Commission for SC/ST against a brother-judge. In 2015, he accused the then Chief Justice of the Madras High Court of harassing him because he was a Scheduled Caste. In February 2016, he accused the Chief Justice of corruption. When transferred to the Calcutta High Court, he issued a stay on his own transfer order. When the Supreme Court lifted the stay order, he ordered the Chennai Police Commissioner to book a case against the two judges under the SC/ST (Prevention of Atrocities) Act. Finally, after a closed door meeting with Chief Justice of India, T.S. Thakur, he joined the Calcutta bench.

In January 2017, judge Karnan wrote to the President of India alleging that twenty judges of the Supreme Court were corrupt; he was served with a contempt notice. Many believe the Court should have asked him to furnish evidence (if any) to support his claims, and investigated the concerned judges. Instead, his judicial and administrative powers were annulled in February, which unleashed an unseemly confrontation. The rest is history.

However, in his challenge to the authority of the Supreme Court, Justice Karnan asserted that as per the Constitution, judges of the Supreme Court and High Courts have co-equal constitutional status, and “high courts are not under supervisory jurisdiction of the Supreme Court”. Hence, the courts have “no power to enforce punishment against a sitting Judge of the High Court”, a point many senior lawyers concur with.

The crux of the problem is the absence of procedures to deal with misconduct in the judiciary. Is Justice Karnan’s alleged misconduct (writing a letter to the President of India demanding a probe into allegations of corruption by sitting judges) a contempt of court? Does the Supreme Court have the power to exercise jurisdiction of contempt of court over a sitting judge of a High Court?

The Supreme Court should have asked Parliament to launch impeachment proceedings, which are preceded by a committee of inquiry. If a case emerged against Justice Karnan, impeachment would follow. The motion has to be supported by the majority of the total membership of both Houses and not less than two-thirds of those present and voting. Grounds for impeachment include misbehaviour or incapacity. But the Congress, Bahujan Samaj Party, and other parties were unlikely to support impeachment.

The judiciary’s “in-house procedure” to tackle errant judges is also ineffective. The Chief Justice of India can constitute a three-member committee consisting of two High Court Chief Justices and a High Court Judge to hear serious complaints. Should it recommend removal, the concerned judge can be asked to resign or seek voluntary retirement. If he does not comply, the Chief Justice of India can order that no judicial work be allocated to the judge and inform the President and Prime Minister to initiate proceedings for his removal, a difficult if not impossible process.

As Justice Karnan retires in June, the best course is to allow him to retire in peace. There is no glory in jailing a sitting judge.