By Biswaraj Patnaik in Puri, May 18, 2017 : For the first time ever, a sitting high court judge has been hauled up before the Supreme Court to answer for a contempt charge. A seven-judge bench of the top court issued contempt notice to Justice CS Karnan of the Calcutta high court.

The Supreme Court early this month held Justice Karnan guilty of contempt of court and sentenced 6-months imprisonment. Justice Karnan was found in contempt of court for disobeying the Apex Court orders successively and hurling corruption charges against Supreme Court and High Court judges.

Anything that curtails or impairs the freedom of limits of the judicial proceedings must of necessity result in hampering of the administration of Law and in interfering with the due course of justice. This necessarily constitutes contempt of court, according to the law.

In India, under Section 2(a) of the Contempt of Courts Act of 1971 defines contempt of court as civil contempt or criminal contempt, it is generally felt that the existing law relating to contempt of courts is somewhat uncertain, undefined and unsatisfactory.

Justice Karnan, has filed a mercy plea before President Pranab Mukherjee seeking stay of the order. The mercy plea was filed on Wednesday, under Article 72 1B of the Constitution.

Since Karnan is set to retire in June, sentencing him to jail will delay clearance of his retirement benefits. High Court judges get paid out of the Consolidated Fund of India.

Justice C.S. Karnan was appointed on March 30, 2009 as a judge of the Madras High Court. He has no opportunity ever since that day of exposing corruption and errant behaviour of senior functionaries of the judiciary.

He first hit headlines in November 2011 when his allegations of harassment and victimisation by brother judges became public. Justice Karnan had even charged that at a marriage function, a brother judge “crossed his leg deliberately touching mine.”

In January 2014, Justice Karnan entered a court hall where a Division Bench was hearing a public interest litigation petition relating to names recommended for the post of judges and declared that the “selection is not fair”.

The Supreme Court in March 2014 condemned Justice Karnan’s behaviour observing: “The sudden unfamiliar incident made us fume inwardly on this raw unconventional protest that was unexpected, uncharitable and ungenerous and, to say the least, it was indecorous.”

The Madras High Court Chief Justice R.K. Agarwal wrote to the then Chief Justice of India P. Sathasivam urging him to transfer Justice Karnan to some other court.

Justice Agarwal alleged that when a lawyers’ boycott was under way, “Justice Karnan barged into my chambers hurling a volley of invectives … seeking a change in portfolio … In fact, some of my brother judges are afraid of him. The conduct of Justice Karnan, as the present incident shows, is not only unbecoming of a judge but also tends to undermine the dignity of the Chief Justice and brings a bad name to the institution.”

Justice Karnan countered this by complaining to the NCSC about Chief Justice Agarwal accusing him of displaying “a form of discrimination without any reason.”

In mid-2015, he accused a sitting judge of the High Court of sexually assaulting an intern in his chambers, a charge he kept repeating for long. He suomotu stayed an administrative order of then Madras High Court Chief Justice S.K. Kaul regarding selection of civil judges and said he would direct the NCSC to initiate proceedings against him under the SC/ST (Prevention of Atrocities) Act. The Apex Court intervened and stayed his interim order for undermining the authority of the Chief Justice.

Justice Karnan had openly dubbed the collegium system of selecting judges autocratic and faulty. Eventually he was transferred to Calcutta High Court.

In response to a bailable warrant issued and duly served for the appearance of Justice C S Karnan – puisne judge of the Calcutta High Court – the learned judge made his appearance on 31 March, 2017 before the Supreme Court with defiance in the air and his personal representation.

Unprovoked, the seven-judge bench granted four weeks time to Justice Karnan to answer the charge of contempt over his allegations of corrupt practices by judges of high courts and the Supreme Court. Pending this hearing before the top court, the learned judge issued an order India has never witnessed before. In that order, he asked Chief Justice of India J S Khehar and six other judges of the Apex Court to appear before him at his New Town residence by 24 April 2017, for violating his rights as a Dalit and humiliating him in public. The order called the seven Supreme Court judges “national offenders” and said they had shown caste prejudice against him and insulted him on 31 March by probing about his mental health.

“Hence all the seven judges are offenders under the Scheduled Caste and Scheduled Tribes Atrocities Act,” said the nine-page signed order. “The Hon’ble judges will appear before me at my Rosedale Residential Court and give me their views on the quantum of punishment for the violation…” said the order.

While the DMK and former Chief Justice of India (CJI) KG Balakrishnan opposed Justice Markandey Katju’s charges regarding the extension given to a corrupt judge, other judges have come out in Katju’s defence, claiming his allegations to be true.

JUSTICE KATJU

Former Supreme Court judge Markandey Katju had alleged that a corrupt additional judge of the Madras High Court had been given extension.A report on The Times of India said that former Supreme Court judge Ruma Pal, who had been part of the three-member collegium that refused to extend the tenure of the corrupt judge, said Katju’s allegations were true. “I am aware of the incident. Whatever Justice Katju has said is true,” said Pal in the report.

Another former Supreme Court judge Asok Kumar Ganguly supported Katju’s claims and raised his concerns about the alleged political pressure prevalent during the appointment of the judge in the Madras High Court.

“I can’t place this additional judge because he got the appointment after I joined the Supreme Court in December 2008. However, it is a matter of great concern. It is quite worrisome for the independence of the judiciary if the Chief Justice of India had taken a decision under political influence,” said Ganguly in the report.

Yet another former judge from the Madras High Court, PK Misra, who is now the Goa Human Rights Commission chairman, confirmed Katju’s allegations.

“The collegium had recommended for confirming seven other additional judges (not six as indicated in the article). Then, the sordid saga as described in the article occurred and Justice RC Lahoti, without reverting to the collegium, on his own, recommended for extension of tenure of all the eight additional judges including the judge concerned,” said Misra, in another Times of India report.

Former Supreme Court judge Katju had created national furore when he had written in his blog about how an additional judge of the Madras High Court was given an extension thanks to political pressure, even though the judge in question was corrupt and there was an adverse IB report in his name.

Justice Katju said that while the then Chief Justice of India RC Lahoti had initially called for an inquiry on the judge, he later gave into political pressure from the UPA and extended the term of that judge.
Embattled Calcutta High Court judge Justice C S Karnan has petitioned President Pranab Mukherjee and Prime Minister Narendra Modi seeking pardon from the six-month sentence pronounced upon him by the Supreme Court for contempt of court.

In a letter written to the President, the PM and other functionaries of the republic, the judge challenged the Supreme Court’s sentence and claimed to have been singled out for punishment because he raised “the little voice from within against corruption in the higher judiciary.”

Further, he added, “The President of India appointed me as a judge and the President alone could have removed me and that too upon an impeachment motion which has received the 2/3rd majority of the members of Parliament.”

The Supreme Court (SC) found Justice Karnan guilty of contempt of court on May 9, 2017, and sentenced him to the highest punishment for contempt under the law — 6-months imprisonment effective immediately. He was also stripped of his judicial duties with a finality — he had already been divested of his judicial and administrative duties in February this year till the contempt charges against him were heard.

There is no denying that Justice Karnan’s conduct has been unbecoming of a judge. The statements made by him, even the “order” passed by him against his seniors in the system, are anything but lawful. His conduct has certainly been deplorable — especially considering that as a High Court (HC) judge, Justice Karnan was expected to exercise immense wisdom, if not the law.

While the Court was right in holding that Karnan was guilty of contempt, its order does not reflect the clarity and consistency expected out of the highest court in the land.

The Supreme Court’s order is unclear and not truly consistent with the Constitution. A judge of the HC or the SC can only be removed by a majority vote in the Parliament, as per Article 124(4). This is where the May 9 order becomes slightly tricky — while it orders that Karnan be removed from all his judicial duties, it does not clarify whether he is removed as a judge. Surely, taking away Karnan’s powers and functions and admonishing him to prison amounts to removing him as judge for all practical purposes — which is a decision the Parliament, and not the judiciary, must take.

This is important because not only is the order now constitutionally ambiguous and confusing, but it is dangerous that the highest court in the land forewent the factoring-in of constitutional law into its decision. What the Supreme Court says has binding legal value for posterity. By hurriedly sentencing Karnan to imprisonment, the Court may have effectively removed him as judge, a power it does not have under the law.

What could the court have done differently? Could it have employed in-house correction mechanisms until Karnan retires next month, and ordered that his imprisonment begin after retirement? Could it have directed the judicial administration to refer the matter to the legislature? Could it have pre-empted the whole debacle by having taken cognisance of Karnan’s conduct much before it escalated to these heights?

May be.

Indiscriminate exercise of suomotu power

Under the Constitution, the SC and the HCs are given the power to take cognisance of matters even if a case of dispute is not filed before them (i.e., “suomotu powers”). This power is granted on the trust that it will be used reasonably, sparingly and with discretion. The suomotu power does not, of course, allow the courts to surpass the rule of law (for instance, a court cannot pass an order without giving the accused a chance to defend herself merely because it exercises suomotu power).

Equally, the suomotu power cannot be inconsistent with constitutional law.

So, it is disconcerting to note in this case that the SC overstepped its suomotu power in ordering that Justice Karnan be imprisoned while his term as a sitting judge of the Calcutta High Court still continues. To be precise, the SC removed him from performing any judicial duties back in February 2017, much before he was even found guilty of contempt. No reasoning for stripping Karnan of his duties is provided in these orders. It is unclear under which legal authority the court decided to divest an HC judge of his functions, especially considering that the Constitution, the foremost law governing these functions, was not referred to even once.

Separately, considering that Justice Karnan was a part of the higher judiciary, and given the fact that a saga of this kind is unprecedented, the SC should in fact have consciously set a cautious precedent – It could have recommended in-house correction mechanisms to be initiated, or Karnan be asked to retire/resign with dignity. While Justice Karnan may have been errant in his conduct, the SC’s treatment of the matter is equally grave, as it may set a dangerous precedent.

The core legal question in the Karnan saga : which law must be given precedence when there is a discrepancy between the Constitution and the Contempt of Courts Act?

Although the answer should have been the Constitution, the Contempt of Courts Act seems to have won in this case.

Meanwhile, as the curtain seems to be dropping on the high drama, Justice Karnan has told the SC that he wants to challenge his conviction. That could reopen yet another high drama for which the world citizens are waiting like in a theater running a horror-action movie.

Karnan has admitted that he had passed erroneous order due to frustration, not insanity.

The Karnan saga is an eye – opener against the collegium system. It’s high time the bosses in the judiciary agree to a more acceptable system like the NJAC with perfection.

Justice Karnan would have retired in June this year. Maybe because he was a Dalit, his intellectual faculties were not recognised by the upper caste luminaries. He should have been heard more keenly and judged on truth and merit.

He stated that the other judges had no independent judgment of their own and were influenced by the Chief Justice to take a view different from what they bad already taken and characterised the High Court as an “engine of oppression” and his order of suspension as “mysterious”. In another representation made to the Governor the appellant alleged that the High Court on the administrative side was seriously prejudiced and biased against him and it acted as if the charges stood established requiring extreme punishment and as such justice May not be meted out to him by the High Court, if it conducted the departmental inquiry.

It would be logical to mention here the unique case of Baradakanta Mishra, a district judge rank official had fought against the mighty chief justice of the Odisha High Court, who had ordered imprisonment for contempt of court. Baradakanta was a brave person, not erratic on any front, and he fought it as a solo battle to win eventually at the Supreme Court of India. In their historic judgement giving the victim full victory relief, the judges of the bench had referred to several landmark judgments by the apex court in

England : 

“Even so, if judges have frailities- after all they are human-they need to be corrected by independent criticism. If the judicature has serious shortcomings which demand systemic correction through socially-oriented reforms initiated through constructive criticis, the contempt power should not be an interdict. AR this, far from undermining the confidence of the public in courts, enhances it and, in the last analysis, cannot be recessed by indiscriminate resort to contempt power. Even bodies like the Law Commission or the’ Law Institute and researchers, legal and sociological may run risks because their professional work sometimes involves unpastoral criticism of judges, judicial processes and the system itself and thus hover perilously around the periphery of the law it widely construed. Creative legal journalism and activist statesmanship for judicial reform cannot be jeopardised by an undefined apprehension of contempt action.”

Even in England a refreshingly pro-free-speech approach has been latterly adopted. Any episode in the administration of justice may be publicly or privately criticised, provided that the criticism is fair- and temperate and made in good faith. Lord Denning, in the famous Quintin Hogg case laid down remarkable guidelines in the matter of, actions for contempt.

The learned Law Lord said : “It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise; more particularly as we ourselves have an interest in the matter.

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake.

It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is, done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms.”

Karnan should have better been ignored and left alone to retire and melt into oblivion in a month’s time. The imprisonment ruling hurts people in all democracies.