The eminent Supreme Court Advocate Prashant Bhushan is of the view that the Supreme Court bench did the right thing in ordering the arrest of Justice C.S. Karnan for contempt of court. However, Bhushan disagreed with the court’s decision to gag the media. He also sought a change in the definition of contempt in the law. Though he does not see a caste angle in the Justice Karnan case, he said casteism was an unfortunate reality in the judiciary. Excerpts from an interview:
Your view about the Supreme Court’s order against Justice Karnan for contempt of court.
What Karnan has done is certainly unacceptable. He has made all kinds of allegations against judges, and he compounded his folly by passing orders against the Supreme Court judges who had issued the contempt notice to him. Therefore, he was certainly guilty of contempt for making baseless and reckless allegations against the judges and for passing these kind of orders. I think they gave him a long enough rope.But the gagging of the media is not called for. Such an order, in my view, is unconstitutional. And, secondly, it’s not in good taste. You can’t protect your dignity by gagging the media. You have to protect your dignity by your own actions. I have always been of the view that this part of the Contempt of Courts Act—the definition of contempt, scandalising the court, or lowering the authority of the court— needs to go in the long run.
Is it because it is abused or misused?
It is sometimes misused, and the dignity and image of the court do not depend upon punishing somebody for making reckless allegations. The recklessness of those allegations should be evident to the people from the court’s own actions. It was clear that Karnan was making reckless allegations.
Were Karnan’s allegations on casteism within the judiciary exaggerated or was there some truth to them?
Karnan’s allegations concerning caste were totally bogus and reckless. Karnan was a reckless judge. He should not have been appointed in the first place. His actions have been totally ridiculous.
I have been saying that this shows that the whole process of appointing judges is not proper because there is no proper scrutiny of these appointees. There is no criteria that have been made and no proper way of judging people on those criteria.
In the post-National Judicial Appointments Commission (NJAC) context, what does it say about the collegium system that’s followed at present?
This whole system is not proper, but it is slightly better than allowing the government to make the appointments. The reform needed in appointments is that you need to have a proper, full-time, broad-based selection committee, not an ex-officio body because this is something that requires a lot of time and for that you need a full-time body.
How do you see the spaces for dissent and whistle-blowing within the judicial system?
That is a serious problem. There is no proper system of judicial accountability. The impeachment process is impractical and politicised. Again, we need a full-time, broad-based body of people who are independent of the government as well as the judiciary both for selecting judges and for removing judges. There need to be two different bodies—one for selecting and one for removing or taking disciplinary action against judges. And the whistle-blowers can blow the whistle to such a body. This has to be outside the judicial set-up. This business of self-accountability does not work. It has to be external accountability, but not through the government.
You have been vocal about corruption within the higher judiciary and have exposed many chief justices and other judges of the Supreme Court. Are there adverse consequences to dissent?
They did initiate contempt proceedings against me regarding an interview I had done with Tehelka. It is still pending in the Supreme Court. So, my own experience has been that if you do it in a very proper manner backed up with evidence, if you blow the whistle against a judge or a set of judges on the basis of proper evidence, usually the judiciary is unwilling to go after you by way of contempt, etc. That’s why it has to be done carefully with complete evidence.
Independent of the Karnan case, what is your opinion about the prevalence of casteism within the judiciary?
Yes, 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.
How does it manifest itself in administering justice?
Occasionally in judicial decisions and judicial appointments also; it manifests itself in both places. It also has a bearing on appointments.
