Introduction

Law is a system of rules that are created and enforced through social or governmental
institutions to regulate behavior. Law as a system helps regulate and ensure that a community
show respect, and equality amongst themselves. State-enforced laws can be made by a
collective legislature or by a single legislator, resulting in statutes, by the executive
through decrees and regulations, or established by judges through precedent, normally
in common law jurisdictions. Private individuals can create legally binding contracts,
including arbitration agreements that may elect to accept alternative arbitration to the normal
court process. The formation of laws themselves may be influenced by a constitution, written
or tacit, and the rights encoded therein .
 Justice

Justice is the legal or philosophical theory by which fairness is administered. The concept of
justice differs in every culture. An early theory of justice was set out by the Ancient Greek
philosopher Plato in his work The Republic. Advocates of divine command theory argue that
justice issues from God. In the 17th century, theorists like John Locke argued for the theory
of natural law. Thinkers in the social contract tradition argued that justice is derived from the
mutual agreement of everyone concerned. In the 19th century, utilitarian thinkers
including John Stuart Mill argued that justice is what has the best consequences. Theories of
distributive justice concern what is distributed, between whom they are to be distributed, and
what is the proper distribution. Egalitarians argued that justice can only exist within the
coordinates of equality. John Rawls used a social contract argument to show that justice, and
especially distributive justice, is a form of fairness. Property rights theorists (like Robert
Nozick) take a deontological view of distributive justice and argue that property rights-based
justice maximizes the overall wealth of an economic system. Theories of retributive justice
are concerned with punishment for wrongdoing. Restorative justice (also sometimes called
"reparative justice") is an approach to justice that focuses on restoring what is good, and
necessarily focuses on the needs of victims and offenders.

Judges Enforce Court Procedure

The judge's first role is to make sure all the parties and witnesses follow proper court room

procedure. Although this doesn't sound particularly exciting, procedure is of vital importance

to the legal system. It was designed to ensure that everyone who comes to court gets a fair

trial.

As far as TV shows and movies go, you can see procedure and rulings come into play when a

judge responds after one of the lawyers makes an objection. In such circumstances, the judge

is usually ruling on the part of procedure that governs evidence. The jury is only allowed to
see or hear certain evidence so that they are not unfairly prejudiced toward (or against) one

party. Although many questions about evidence are settled before the start of trial in pre-trial

motions, sometimes these decisions have to be made on the fly while court is in session.

Judges Decide Issues of Law

Most trials have two arguments going on at the same time. The first is the argument over the

facts of the case: who did what, where, and when? The jury usually decides these questions,

although in some types of cases the judge can act as fact finder. The second argument is

about the law. Each party's lawyer will study the laws written by the legislature and past

cases to determine the exact status of the law. Then, the lawyers argue with each other about

why the law favors their respective clients. Sometimes, when both parties mostly agree on the

facts, this happens during summary judgment. When the facts are in dispute, the judge will

provide the jury with instructions about the law so that the jury can make an educated

decision about the case.

For more information on the court and what happens in a law suit, see FindLaw's section

on Litigation.

JUDGES ARE NOT ABOVE THE LAW

It is true that judges are not above the law. This brings to the fore the fulcrum of the argument
for and against the arrest of the judges. The law! Every power, force, person, and institution
must act within the confines of the law and the law is no respecter of persons. The law is the
standard against which all actions in a sane and democratic society must be judged and
evaluated. If the law is jettisoned and sacrificed on the altar of sentiments or what appeared
right at the moment, and an action which the law condemns is upheld and approved by the
populace because it seems right at the moment, there and then, the law is no longer the
standard for evaluating the propriety of an action and no one should make reference to the
law as the standard!

One of the reasons why the law is above everybody is to preserve the rights of everyone. If
the law remains above everyone, the strong would not oppress the weak, things would be
done in consonance with the prescription of the law and where the law is deemed to be
inadequate, the law would be amended to prescribe new standards and procedure for doing
things. Until the law is amended or changed, it remains the standard against which every
action is evaluated or adjudged. We cannot afford to be selective in the application of the law
otherwise, such selective application would constitute the beginning of a total breakdown in
law and order and while sentiments and emotion may run high and wild in approving a
selective violation of the law against a particular group of persons, whether they be judges or
not, such selective violation falls within an uncharted path which can only lead to anarchy,
break down of law and order and the eventual violation of the rights of everyone. To maintain
order and sanity in a democratic society, no matter the allegation against a person or group of
persons, we must remain within the confines of the law to redress any perceived infraction of
the law. As the saying goes, “two wrongs do not make a right”.

Back to the issue on hand, the arrest of these judges was based on the allegation that these
judges were corrupt and have accepted bribes in the discharge of their constitutional duties. If
this is so, the constitution also prescribed the sacrosanct procedure for disciplining judges
who have violated their sacred duty as a result of illegal lucre. Section 153 (1) (i) of the
Constitution of the Federal Republic of Nigeria 1999 as amended, established the National
Judicial Council (NJC) as a constitutional body and vested it with powers prescribed under
the 3rd Schedule Part 1(I) paragraph 21 (a)-(i). Of particular interest and relevance is
paragraph 21 (b) which vested the NJC with the EXCLUSIVE powers to discipline judges
who have erred in the discharge of their constitutional duties. What is even more is that the
Constitution at Section 158 provided that the NJC shall not be subject to the direction and
control of any other authority or person in the exercise of the power to discipline an erring
judge. The provision of Section 158 is not subject to any other provision of the constitution.
The implication of this is that only the NJC can discipline erring judges while they are still
serving judges and have not been dismissed or retired or sacked from being judges.

No other statutory body has the powers to discipline erring judges. The best that anyone can
do in the circumstances (including the DSS, the Police, the EFCC, and any other person or
institution) is to file a report or send a petition to the NJC. This is in keeping with the doctrine
of separation of powers. Every institution, body, position or person created by law derive
their very existence from the constitution and all the powers exercisable by such institution,
body, position or person must find a solid footing in the constitution, failing which such
exercise of powers would be ultra vires, illegal, draconian and utterly condemnable.

This brings us to the next issue of whether the DSS, on its own, without the intervention or
authority of the NJC, can legally purport to have obtained a warrant to arrest serving and
active constitutional judges of superior courts of record? The law which created the DSS is
the National Security Agencies Act. This law is inferior to the constitution and derives its
existence from the constitution. Any provision therein shall be consistent with the provisions
of the constitution, otherwise such provision shall be null and void to the extent of its
inconsistency. This include provisions on the powers which is exercisable by the DSS.
Section 2(3)(a)-(c) vested the DSS with the power to prevent and detect crime within Nigeria
which is against the internal security of Nigeria and to protect and preserve all non-military
classified matters concerning the internal security of Nigeria and other responsibilities
affecting the internal security of Nigeria as the President or National Assembly may deem
necessary.

It is not rocket science to see that none of the above statutory powers can be purportedly
exercised to obtain any warrant to arrest serving and constitutional judges of superior courts
of records in Nigeria and officers in the temple of justice and of the third arm of government.
Even if the provisions of the National Security Agencies Act were to empower the DSS to
obtain warrant to arrest judges in the middle of the night, such provisions would be ultra
vires, unconstitutional, null and void and such exercise of powers would be illegal.
The above has nothing to do with whether the arrested judges were guilty of corruption
charges or not. It is simply a question of the propriety and the constitutionality of the
procedure through which the arrest was carried out and the grave implication this has for our
democracy. Things must be done properly otherwise someday a person would in the bid to
cure headaches start cutting off the heads of those suffering from headaches. This is
condemnable and should be condemned by every stakeholder of the Nigerian democracy.

The next issue is whether judges can be arrested and prosecuted for corruption? Yes of
course, only not when they are still judges. This is the implication of the provision of the
constitution espoused above. The correct procedure is to have these judges reported to the
NJC, investigated and if found wanting, recommended to the appropriate quarters for
dismissal.

Thereafter, when they are no longer serving judges and have been sacked or dismissed from
service, they can be arrested and prosecuted by the appropriate authority. This is in keeping
with the constitution.
 Justice Karnan versus Supreme Court

The Supreme Court on May 9 held Justice CS Karnan of Calcutta High Court guilty of
contempt of court, judiciary as well as judicial process, and sentenced him to six months
imprisonment. This was unprecedented — a sitting judge being convicted and sent to prison.

"We are of the unanimous opinion that Justice CS Karnan has committed contempt of court,
judiciary and judicial process of the gravest nature," Chief Justice of India, JS Khehar,
mentioned in the order.

The court also ordered the media not to publish the content of orders passed by Justice
Karnan, who on May 8 had issued an order sentencing eight Supreme Court judges to five
years of “rigorous imprisonment” and imposed a fine of Rs 1,00,000 each under the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act of 1989 and the
amended Act of 2015.

Justice Karnan named members of the apex court's seven-judge bench, comprising the CJI,
justices Dipak Misra, J Chelameswar, Ranjan Gogoi, Madan B Lokur, Pinaki Chandra Ghose,
and Kurian Joseph.

It’s been a more than three-month-long standoff between the Supreme Court and Justice
Karnan.

Justice Karnan’s prolonged spat with his fellow judges highlights the longstanding need
for an effective judicial accountability law in India.

The members of the seven-judge bench, headed by Justice Khehar, issued a contempt order
against him in February on charges of degrading the judiciary.Justice Karnan, on his part,
directed the Supreme Court judges “to appear before him on May 28” and later “reposted”
the matter to May 1.

The Supreme Court bench ordered Justice Karnan to be medically examined. But he refused
to undergo medical tests as directed by the Supreme Court and told the team of doctors, in a
written response, that he is “absolutely normal and with a stable mind.”
Instead, he hit back by ordering the Delhi Police to produce the seven judges of SC before a
psychiatric ward under AIIMS in Delhi, and submit a report by May 7 after conducting
“appropriate medical test”. He also issued non-bailable warrants against these judges.

Justice Karnan has a history of hurling invective and unproven accusations at other judges.
He has publicly accused his colleagues of caste-based discrimination, sexual assault and
corruption, without any supporting evidence. In 2015, he attempted to try his own chief
justice at the Madras HC, the highly-regarded Justice Sanjay Kishan Kaul, for contempt of
court.

Instead of fixing the problem, the SC collegium transferred Justice Karnan to the Calcutta
HC. Before he went, Justice Karnan opened criminal proceedings against two Supreme Court
judges.

Once he arrived in Kolkata, the judge wrote to the PM accusing 20 judges of corruption. As a
result, a seven-judge bench of the Supreme Court began contempt proceedings against him.
There definitely seems to be some fault line — it is either because of Justice Karnan’s
compulsive behaviour of levelling allegations, or it was because the SC overlooked his
complaints and therefore the matter reached so far.

Justice Karnan, who will retire on June 11 this year, will spend the last month of his tenure as
judge and five months thereafter in jail. Additional solicitor general Maninder Singh, senior
advocate KK Venugopal and Rupinder Singh Suri agreed with the apex court that Justice
Karnan has committed gross contempt of court and needed to be punished exemplarily.

But Venugopal, took a while to think and said if Justice Karnan is sent to jail now it would
create a blemish in the history of judiciary — a sitting judge being jailed. He asked if the
court could wait until his retirement. But, the Supreme Court said “contempt power does not
recognise or differentiate who is what — a judge or a common man. Whosoever commits
contempt gets punished".

Certainly, the Indian Judiciary has been blemished by this, and could have very well been
avoided by the Supreme Court.
 Judicial indiscipline

Justice Karnan’s bizarre behaviour embarrasses himself and the judiciary he represents. The
Supreme Court had taken suo motu cognisance of various letters written by Justice Karnan
against the judges of Madras High Court as well Supreme Court to PM Modi.

In his letter to PM, Justice Karnan had named 20 corrupt judges and sought probe against
them to curb “high corruption” in the Indian judiciary. But the Suprme Court issued contempt
notice against him for writing letters casting aspersions on judges and restrained him from
exercising administrative and judicial power from 8 February. Why can’t a brother judge
highlight corruption going amongst his fraternity?? Are Suprme Court judges not accountable
and is it for them holier than thou??

Justice Karnan’s prolonged spat with his fellow judges highlights the longstanding need for
an effective judicial accountability law in India.

There is currently no mechanism short of impeachment to discipline judges. Consequently,

numerous instances of judicial misconduct have gone unpunished and bad judges have never
been weeded out of the judiciary.

The current statutory mechanism for judicial misbehaviour, the Judges (Inquiry) Act, 1968,
has hopelessly failed to discipline judges. The legislation created a procedure for impeaching
judges but does not address infractions that are not serious enough to warrant impeachment.
Surely, the judicial indiscipline has flourished because of this legal vaccum.

There is widespread misconduct in the judiciary. Justice Karnan’s appointment as a judge

was first recommended by Justice Asok Kumar Ganguly, who, in 2013, was accused of
sexually harassing an intern. Even though a panel of SC judges confirmed the intern’s
accusations, Justice Ganguly was never prosecuted. A similar complaint against Justice
Swatanter Kumar, currently the chairman of the National Green Tribunal, was met with an
illegal gag order by the Delhi HC that banned the press from reporting on the matter. In 2003,
several judges of the Karnataka HC were caught cavorting with sex workers at a roadside
resort.

It is not surprising that Supreme Court judges continue to claim that they are immune from
the transparency requirements of the Right to Information Act.
In 2005, the total value of corruption in the judiciary was quantified at Rs 2,630 crore per
year.

In 2010, former law minister, Shanti Bhushan, courted contempt by claiming that eight of the
last 16 chief justices were corrupt. And In 2015, Justice Markandey Katju claimed that half
the higher judiciary was corrupt. Shouldn’t the judges of our country be more accountable
because it is said that Caesar's wife must be above suspicion?

Need for a statutory mechanism

Judges have consistently claimed that an external accountability model would be politically
misused. That was the primary ground for striking down the proposed National Judicial
Appointments Commission in 2015. But it is not difficult to minimise the possibility of the
disciplinary power being politicised, particularly if the power is vested with an independent
body.

It’s high time that judges clean up their act. Above all, there is definitely a need for a
statutory mechanism that clearly defines judicial misconduct that falls short of impeachable
behaviour.