RAJU RAMACHANDRAN, eminent Senior Advocate of the Supreme Court, has 40 years of distinguished legal practice behind him. His book, I’ve been around for some time , published last year, is not just a collection of his columns, articles and interviews but captures the sociolegal underpinnings of contemporary society and stimulates the reader to reflect further.
Among other things, the Justice Karnan episode is a sad reminder of whatever is wrong with the collegium system of appointing judges, as Justice Karnan was a product of this system. As a critic of the collegium system, Ramachandran may have reasons to claim that he stands vindicated, but he is more inclined to look for the causes that led to Justice Karnan’s conviction and sentence. Excerpts from the interview he gave Frontline :
Was there any alternative to contempt proceedings against Justice Karnan?
I don’t think there was an alternative to the contempt proceedings as far as the court is concerned. The other alternative, namely, the removal process, was within the realm of Parliament. But having initiated those contempt proceedings, and having seen the stand of Justice Karnan, who appeared before it on one occasion, the court could have taken a pragmatic view of the matter, because of the happy circumstance that his retirement is imminent. This was the suggestion of K.K. Venugopal, and I wish this wise counsel had been heeded.
But the Supreme Court, in the contempt proceedings, sought to make no distinction between a judge and an ordinary citizen.
Definitely, the initiation of contempt proceedings itself must have been actuated by the feeling that the judiciary should be as strict, if not stricter, with its own as it was with an outsider. But as the drama played out, it was clear that this was not a case within the realm of the ordinary. The public itself would have understood from the conduct of Justice Karnan that the case merited different treatment.
And the lack of procedural fairness in the entire exercise of contempt power by the Supreme Court has been of concern to many.
I would say that the court hastened the process without following the procedural steps which it was required to do, having directed his medical examination. It had to arrive at some legal conclusion on the basis of his refusal to be examined, namely, whether it was a wilful non-compliance of its directions, before convicting him.
Reasons for the court’s order are to follow later, and with the courts having closed for the summer break, we can expect a reasoned judgment only on the reopening in July. To convict without giving reasons appears inappropriate to me. It does reduce the legal acceptability or legitimacy of the order. But no order of the Supreme Court can be ignored. Those who are bound under the Constitution to execute the order of the court can have no excuse for not carrying it out.
The gag on the media from reporting whatever Justice Karnan may say has, to many, tarnished the image of the Supreme Court.
I don’t think this was adequately thought out. The gag on the media should have been backed by a modicum of reasoning, namely, that since he had been held guilty of contempt, publication of his statements bringing the court and the judicial system into further disrepute would amount to perpetuation of the contempt.
Justice Karnan, before his conviction and sentence, was already deprived by the Supreme Court of his administrative and judicial work. Therefore, can he be subjected to one more punishment in the form of imprisonment for six months for the same offence of contempt?
Deprivation of judicial and administrative work itself is not a punishment because it is only the equivalent of an ordinary employee being placed under suspension. The legal position is clear that suspension is not a punishment (except in rare cases, where prolonged suspension has itself been held to be punishment).
Does not the Supreme Court’s move to convict and sentence Justice Karnan on the same day strike at the root of procedural fairness and natural justice?
I wish the Court had given at least a short time to him to respond on the question of sentence and then passsed a sentence if he still did not appear. If the idea was that effective orders needed to be passed, while he was still a sitting judge, it was still possible to give at least two or four days’ time. After all, the court is sitting during the vacation. If all the seven judges were not available, a different bench of seven could have been constituted, as a matter of necessity.
The constitutional power to punish for contempt, under Article 129, is certainly a higher power than the ordinary power under the Contempt of Courts Act. But while the provisions of the Contempt of Courts Act may not apply, in their strict sense, the rules of procedure which it embodies are rules of fairness that should equally guide the exercise of constitutional power.