For a judicial accountability mechanism

Arghya Sengupta is founder and research director at the Vidhi Centre for Legal Policy, a New Delhi-based think tank that does legal research and assists the government in making better laws. Sengupta holds a doctorate in law from the University of Oxford on the subject of independence and accountability of the Indian higher judiciary. He is currently writing a book that deals with the question of impeachment and methods of holding judges accountable. He is also editing a book on judicial appointments in India. Excerpts from an interview he gave Frontline .

Did the Supreme Court have any alternative to initiating contempt proceedings against Justice Karnan?

This entire Karnan episode essentially shows that there is an absence of judicial accountability mechanism, short of impeachment. If you have an indisciplined judge whose conduct is either worthy of impeachment (and the impeachment is not happening) or the judge’s conduct is such that it is not worthy of impeachment but it is still misconduct of some shape or form, then there must be some measures to deal with it.

Now the issue is that, with the Judicial Standards and Accountability Bill not having been passed, and with the Supreme Court not having instituted a credible in-house procedure against judges, there is a gap, and the judges felt that given the fact that this action was continuing, the only option open to them, if they had to act, was contempt.

Senior counsel K.K. Venugopal suggested to the court during the proceedings that it should let him go because of his impending retirement.

After having initiated contempt proceedings, given the fact that this contempt was anyway multiplied time and again first by Justice Karnan not appearing, then by him passing these orders, after all that, the court just could not look back. This submission of Mr Venugopal might have been a good argument to not initiate contempt proceedings, but if the court in its wisdom decided that it wanted to initiate contempt in order to demonstrate that it will act harshly against one of its own like it often does with people outside, then I think this was the only course that the court had.

Has the court been able to send a message that it will not hesitate to act against one of its own?

I think the message has been sent. However, I feel that it has come at a certain cost. I think the biggest cost is the fact that the court decided that it would now bar all orders passed or statements made by Justice Karnan from being reported. That the contempt power needed to be used in order to send the message is what is potentially troubling. However, if we think that by acting against Justice Karnan we have addressed the core issues that pertain to the judiciary then we will be wrong. Because Justice Karnan is a bit of an outlier. It is an exceptional situation. And sometimes exceptional situations demand exceptional measures.

There is an opinion that the court should have addressed the concerns that Justice Karnan raised. And the larger concerns about caste within judiciary should have been addressed—so goes the view.

His allegations are fairly serious. I think caste and representation within judiciary are very genuine issues that have been raised. The court, in my view, gave him an opportunity to make good his allegations. He did not take it. However, this forum of judicial proceedings through contempt is not the place to look at it.

But the Contempt of Courts Act provides truth as a defence. Should not the court investigate these allegations?

Now you see, this is where we have a problem. Because the Supreme Court has held that the Contempt of Courts Act does not apply to it. There are two judgements of the Supreme Court—in the SCBA [Supreme Court Bar Association] case and Delhi Judicial Services Association case—where they have said very clearly that the contempt power is a sui generis power, that is, coming from Article 129 of the Constitution, and that cannot be trammelled by any statute. The court reiterated this in the Sahara-Subroto Roy contempt case.

But the court has gone much further here. It appears to be suggesting that even the Constitution does not apply. Because when you are now restricting the freedom of speech of the media, you are trampling on the media’s Article 19 rights.

Do you agree with the ruling that the Contempt of Courts Act does not apply to the Supreme Court?

The power of contempt are jurisprudentially the power of last resort. So it must be, in some senses, expansive. It cannot be otherwise. You cannot think of a situation where Subroto Roy of Sahara defaults on thousands of crores and pays Rs.2,000 as civil contempt, the maximum fine prescribed under the Act. So there is an issue as to why the contempt power needs to be expansive. The question is—how expansive can it be? My answer to that is that it must be as expansive as possible, but it must, to the extent possible, respect coordinate provisions in the Constitution. At the end of the day, contempt is a power flowing from the Constitution. Now the exercise of the contempt power will necessarily trample on somebody’s fundamental rights. The contemner may be put in prison; you cannot say that it cannot violate Article 21. His freedom of speech might be restricted. But what the court has said in this case restricts the rights of somebody who is not a contemner: the media are not contemners before it. Restricting the media without hearing them has some natural justice issues and, therefore, is a problem. So I think there needs to be a genuine introspection by the court and the legal fraternity as to what the remit of contempt powers should be.

The whole idea of sentencing someone along with the conviction, without any break—don’t you find it troubling?

See, in terms of normal criminal principles, obviously it is troubling. It does not happen largely in that way. But given the fact that it was an exceptional situation and there were already three hearings provided to him, and there was another opportunity for him to come and be heard, which he took on one occasion and did not take on the remaining one, on balance, it is perhaps justified.

But sentencing someone to imprisonment without a reasoned judgment. How could that be justified?

Reasons should have been and could have been provided. Either the reasons could have been there, or they could have sentenced after the reasons were ready. They could have done it in one or two days.

The well-known senior advocate Indira Jaising has said that the court is doing indirectly what it cannot do directly by sentencing Justice Karnan to imprisonment, and thereby removing him from office.

No, I think that we need to recognise that there is a distinction between the two situations. Impeachment is permanent stripping from judicial office. It is a service-related issue, where a person is found through a political process to be unsuitable for continuance in office. Criminal contempt is an act of criminal misconduct that erodes the dignity of justice, which might lead to conviction in exceptional circumstances, of which this was one.