What happens when you see your teachers fighting in your school corridor or how do you feel after watching your grandparents confront each other. Our country, the largest democracy of the world, witnessed somewhat similar instances last month when the apex court convicted a sitting judge of Madras High Court for criminal contempt and sentenced him a jail term for six months, something which is quite unprecedented.
The judiciary being the guardian or teachers taking on one of their own members which came as an aberration, not because there is no constitutional provision for punishing a sitting judge, there is: the removal of judges under Article 124 of the Indian constitution. Not only the judicial spectrum (including lawyers and judges) but even the polity of the country was at sixes and sevens. The issue also stoked up a new legal discourse in the country and saw lawyers, politicians and bureaucrats taking different stands. The front page of the Frontline read Judges vs. Judges, which, to an extent, is an apt description but apart from the fact that a sitting judge was convicted, there are many other disputations with the Supreme Court’s judgment. To understand the issue in a much more comprehensive manner a glimpse at the chain of events in Justice Karnan’s case would be quite helpful.
January 23: Justice Karnan wrote a letter to the Prime Minister of India exhorting him to take some strict action against “high corruption at the judiciary”. The letter provided a list of 20 judges (Madras High Court) and names of three officers, one of them being the President of Tamil Nadu Advocates Association, who according to him, had detailed knowledge and proofs of the corrupt deeds of the twenty judges. He also requested a detailed interrogation of these three officers by “Central Agencies”. The Supreme Court took suo motu cognizance of the issue.
Surprisingly, he refused to attend the contempt proceedings however, instead asking for a compensatory amount of `14 crore from the seven-judge bench for “disturbing his mind and normal life.”
A seven-judge bench comprising Chief Justice of India and six senior judges of the apex court issued an order, directing Justice Karnan to abstain from any judicial and administrative work as may be assigned to him in furtherance of the post he holds. He was also directed to return all the files in his possession to the registrar of the High Court.
The bench heard the case and took note of his deliberate absence even after issuing a notice. Also he did not authorise anyone to represent him in the case. The bench granted him another opportunity and adjourned the case to March 10th.
Again the bench noted Justice Karnan’s failure to appear. And to seek his presence issued a bailable warrant through the Director General of Police.
But on March 8th Justice Karnan sent a message to the registrar of the Supreme Court requesting a meeting with CJI and other senior judges. The bench on March 10th hearing took note of the message but held that the message could not be taken as a response to the contempt petition or the notice served to him. Also he complied with the orders of the Supreme Court and vacated the official bungalow.
He appeared before the bench and was asked whether he accepted what he had written…the contents of the letter being available on the record. The bench observed that there was no affirmation on the matter, therefore the proceedings would take place on the basis of the written response which he had to submit within the four weeks from the date of the order. Justice Karnan had requested the bench to restore his judicial work. Also he told that he would not attend the next hearing and the court could arrest him if it pleased.
After the hearing Justice Karnan “ordered” the seven-judge bench, including CJI to face the proceedings at his “residential court” for insulting him in open court. He also accused that this constitutes an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) 1989.
This whole controversy took a new turn when he accused the judiciary for subjecting him to caste discrimination and that he had been singled out. Although his actions were condemned by most of the legal fraternity but the issue of casteism in judiciary was again brought up. Senior Advocate Prashant Bhushan in an interview regarded the actions of justice Karnan as comprehensible and reckless. He pointed out: “there is casteism within the judiciary, similar to what we see in higher society, among educated people outside. The same thing happens within the judiciary also.” [Reported by Frontline]
The bench suspected his mental illness and ordered to constitute a board of doctors for his medical examination which he refused and submitted the report by 4th May.
The last day bench considered that it was running out of time in view of his superannuation on June 12, and since Justice Karnan had exhausted all the options available to him it deemed fit to sentence him for six months.
The judgement by the apex court was not a surprising one because the actions of Justice Karnan were making a mockery of the Indian Judiciary which should have been dealt in a stringent manner which the court did, not to mention his recalcitrance towards the proceedings where he didn’t bother to show up, knowing the gravity of the charges he levelled. The decision of the court was welcomed across the legal fraternity but there is a growing criticism against the Supreme Court regarding the manner in which it has dealt with him, including the actions and allegations against him.(frontline) There were some contentions raised not on the legality of the judgement but on the modus operandi on the court in this particular case.
In my humble opinion, the following are the issues where the contentions may arise:
KARNAN’S CASE: AN ABERRATION
Over the past there have been many instances where the sitting judges were removed through an impeachment proceedings as enshrined in the Indian Constitution, Justice Soumirta Sen and PD Dinakaran, the significance of this case lies in conviction of a sitting judge. And this is exactly the bone of contention.
According to critics, the court should have ordered an investigation into the matter as per the new amendment in the section 13 of Contempt of Courts Act 1971, stipulates truth as a defence. The due to change in the law, the procedure even if summary, should be preceded by an impartial and independent investigation. But the bench sought to deal case stringently and explicitly mentioned the principle of equality before the law, which is quite plausible. Also the proceeding could have taken place after his retirement but the bench’s implicit objective was to send a message that it applied its contempt powers even on a sitting judge.
This case also highlighted the pitfalls and the need to amend the law and procedure with regards to suo motu contempt proceedings because there is no way to ensure Human Rights and Fundamental Rights of the accused in such cases. Otherwise the essence of democracy would be watered down by the might of the whole judiciary which is pitted against the accused. The judgement itself highlights two important specious points.
Firstly, Nemo judex in sua causa, no one should be the judge in his own case, the contempt proceedings are initiated against the accused contemnor and the court. The court, itself being a party and the judges decides the case. This is being construed as a violation to the principles of natural justice. But from the perspective of the courts it is very necessary to criminalise the disobedience of its decrees, judgments and orders. This makes judicial legislations binding on the country and upholds the sovereignty of Indian Judiciary.
Secondly, it raises an important issue which was never brought up in Indian political discourse, Quis Custodiet custodies, who will judge the judges. This issue is widely debated in western countries. Some years back, a judge of District of Columbia in his speech raised very pertinent question regarding what is now called “Judicial Excess” and asked “How are we to be guarded by our guardian?” The answer can be judges are bound by the law that is independent of their views.
This compels us to delve into the jurisprudential norms which laid down the basis for our constitution and to rethink whether there is a need for a new mechanism which protects the citizens from the desires and tyranny of judges.
Sometimes the greatest threat to the judiciary lies from within. Plato once asked a philosopher king “Is it more advantageous to be governed by the best of men or the best of laws”, also he pointed out a basic human trait which might be helpful to get an insight of the current scenario, that “Invest a man with authority is to introduce a beast, even the best of men in authority can be corrupted but law in contrast is without passion”.
The judgement has received major criticisms for its order, banning the reporting in Justice Karnan’s case. It is quite evident that the contempt charges are antithetical to freedom of speech and expression which is, though a Fundamental Right in Indian Constitution, it is subject to provisions that the state may invoke in special circumstances, which was aptly done in this case. But the order prohibiting Justice Karnan’s statements was uncalled for. Commentators across the spectrum, including legal circles, have expressed reservations with this part of the judgment.
The three pillars of democracy practise separation of power which is also one of the intrinsic principles explicitly mentioned in our constitution. The Constitution of India provides that there would be separation of power among all the three and for the smooth functioning, there is a system of checks and balances. Each body has to perform its functions within the confines mentioned in the constitution and encroachment by any of the three would be strictly dealt with. Media is considered the fourth pillar of Indian democracy (specifically mentioned in Indian Constitution) which scrutinizes the other three, thus ban on discharging its legitimate function of informing the people, provides the Judiciary an upper hand over the fourth pillar.
Justice Ajit Prakash Shah in his recent address on World Press Freedom Day greatly emphasized on the courts resorting to the contempt action against anyone who criticizes their judgement. He urged:
“You must ensure that the press has its fair share of criticism and call out courts when they out to be. Courts must be more strained in their use of contempt proceedings as a tool”.
But there is little ambiguity on the limits prescribed for the criticism of court. Ever since the rise of right wing the issue of restricting speech has come to the fore, the courts have a major role to play in form of laying down precedents. Section 5 of the Contempt of Courts Act 1971 itself ambivalent and paradoxical in nature one by stating that a fair comment on the merits of a case cannot attract contempt charges and other by not unequivocally defining “fair comment”. Criticism of Court when transgresses the limits of fair and bona fide criticism amounts to contempt of court. (Aswini Kumar Ghose v. Arbinda Bose, AIR 1953 S. C. 75).
This ambivalence maintained in the statute may be a serious threat to the free speech. There have been many instances where the courts have widened the scope of words like “disobedience and obstruction” but mostly the interpretations are quite restrained and parochial.
Justice Karnan’s case will be regarded as one of the landmark cases in the history of Indian judiciary, where a sitting judge was sentenced for his uncanny and bizarre behaviour. Also his allegations have brought ignominy to the Indian judiciary.
Though there has been much hue and cry about his mental illness so much that the Supreme Court had to order for his medical examination but according to me considering him of any mental illness or insanity would rather an act of idiocy because after the bench delivered its judgement he absconded from his place and was still hiding as a fugitive. He was absolutely in proper state of mind when he made such derogatory remarks for the Indian Judiciary. His actions have brought shame to the entire country and to curb such kind of activities from judges who are considered as the biggest law teachers of the country is despicable.
However, this case has brought many important issues to the public attention which are to be dealt with as soon as possible. Firstly, the crisis in the Indian judiciary, there is a dearth of rational, logical, courageous judges who consider themselves under the law not above the law of the land. Also the situation is aggravated after the reinstatement of the Collegium System which highly criticised for its favouritism.
Thus it would not be incorrect to say: “The Indian higher judiciary is going through one of its most testing times. Its credibility is being called into question, doubts are being raised over its independence, and resentment is growing over its inefﬁciency. No matter how good the rules or the institutional mechanisms, when it comes down to it, everything rests on the men and women on the bench.” [Reported by EPW]
Secondly, the courts which have the vested power to protect the rights of the citizens have violated the fundamental right of freedom of press and media without any plausible reasons which is a massive blow to essence of our democracy. The gag on the media came out of nowhere the orders of the apex court reeked off an urge to violate the solemn guarantee in the constitution. The media was not accused of contempt in the matter, also principle of natural justice demand that media should have been issued a notice and heard in the court, this is an ex-parte order.