Jus­tice Kar­nan’s Case: An In­side Story Of In­dian Ju­di­ciary

Shash­wat Ti­wari

Libertatem Magazine - - News Story -

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.”

Fe­bru­ary 8: 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. Fe­bru­ary 13: 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. March war­rant10: Again throughthe benchthe Direc­tornoted Jus­tice Gen­eral Kar­nan’sof Po­lice. fail­ure to ap­pear. And to seek his pres­ence is­sued a bail­able But with on CJI Marc­hand oth­er8th Jus­tice se­nior Kar­nan judges. sent The a bench mes­sageon Marchto the 10th regis­trar hearingof the took Supre­menote of Court­the mes­sage re­quest­ing­but helda meet­ingthat the com­plied mes­sage with couldthe or­der­snot be takenof the as Supre­mea re­sponse Court to andthe con­tempt­va­cated the pe­ti­tion of­fi­cial or bun­ga­low.the no­tice served to him. Also he March 31: 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.” May 1: 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. May 9: 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.

“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.” - Jus­tice Kar­nan

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 Gag-or­der 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. Con­clu­sion 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.”

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.

“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.”

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