Quis custodiet custodes? (Who will judge the judges?) The judges of the Supreme Court constitute the highest court and the last court of appeal. They are neither elected nor, once appointed, can they be disciplined by any institution except Parliament by way of impeachment. The recent order of the seven-judge bench of the Supreme Court convicting and sentencing Justice C.S. Karnan of the Calcutta High Court to six months’ imprisonment for contempt of court has brought this question to the fore again. This is in addition to the questions relating to the contempt of court power usurping the impeachment function of Parliament, the propriety of the order gagging the media and the malaise of an unrepresentative judiciary.
The saga relating to Justice Karnan is not a short one. His alleged acts of irregularity, illegaly and even delinquency have been in the media for long. They have even been subjected to judicial review and remedied by higher benches of the same High Courts and even the Supreme Court. One such case, wherein he as a High Court judge happened to be impleaded, strangely as a party respondent, got tagged with the present contempt proceedings. He was evidently in the dock and the media cannot be accused of being merciful to him. But the post-punishment scenario is different. There is growing criticism against the Supreme Court regarding the manner in which it has dealt with Justice Karnan, including the allegations by and against him. True, impropriety or even illegality of the action by the Supreme Court should not be a reason to permit Justice Karnan to go scot-free if he is proved guilty under the Constitution.
However, democratic fairness is not that simple. It requires even legally sustainable actions against anybody to be fair and reasonable. The democratic mandate inherent in this sense of fairness expects the polity to shift its stand in favour of the one who is put in the dock and to rise in defence of his democratic entitlement to fairness. Thus, until the judiciary and other judges were kept in the “dock” by Justice Karnan, the public and the media were eager to subject him to strict scrutiny. Even his alleged reliance on his ‘Dalit’ identity was not taken kindly to. However, gradually, when he was found to be in deep trouble at the hands of the omnipotent suo motu contempt jurisdiction in the apex court, the fairness pendulum started to swing to the side of Justice Karnan. A large section of the media felt that he, even if guilty, had to be treated as deserving natural justice and constitutional protection. The punishing judges and the judiciary then came under strict scrutiny. Are they being fair? Could it be that they were scared and perplexed and thus, groping in darkness, had to pick up the crutches of contempt of court? Would an impartial and independent inquiry into the allegations against and by a sitting justice of a High Court have done more harm to the independence of the judiciary?
Epic retold The year 1964 saw the release of the celebrated Tamil film, Karnan , which featured the film icons ‘Sivaji’ Ganesan and N.T. Rama Rao. The film, based on the story of Karnan, a character in the Mahabharata, was later dubbed into Telugu and Hindi. Although the storyline follows the narration in the epic, there are some artistically constructed changes.
In preparation for the Kurukshetra war, the Kaurava assembly convenes under Duryodhana to appoint the generals of the army. Bhishma is appointed the commander-in-chief and he nominates generals for different battalions. Karnan is insulted on account of his lowly birth and given the command of a low-rank infantry. However, during the war Bhishma loses. Eventually Karnan is appointed commander-in-chief replacing him. Karnan goes to war accompanied by his son Vrishasena. Vrishasena fights bravely, but is killed by Arjuna.
In revenge, Karnan uses the Nagastra against Arjuna, but Krishna saves Arjuna from it. Since Karnan unsuccessfully used the Nagastra once and he cannot use it more than once as per a boon received he is unable to kill Arjuna. A wheel of Karnan’s chariot gets stuck in a hole and he steps down to pull it out. At that time, Arjuna, under the direction of Krishna, shoots arrows at Karnan that severely wound him. Krishna tells Arjuna that the punya (merit) that Karnan has attained during his lifetime is protecting him. Krishna disguises himself as a Brahmin, goes to Karnan and begs him for his virtues as donation. Out of generosity, Karnan donates all his virtues to the Brahmin. At this juncture, Arjuna shoots a few more arrows at Karnan that kill him. Karnan’s request to wait until he raises the wheel of his chariot is rejected mercilessly. Afterwards, the Pandava brothers realise that Karnan is their elder brother. Arjuna is filled with remorse, but Krishna consoles him and the others that what happened to Karnan was guided by the curses of Indra and Parasurama, especially because he hid his caste.
In an epic and in a war Karnan might have deserved it. But in a constitutional democracy, even a convict on death row is not devoid of the entitled human rights. The very value of independence of the judiciary is derived from a human right as enshrined in Article 10 of the Universal Declaration of Human Rights (UDHR): “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal....”
Can a derivative value such as judicial independence annihilate its mother value, the very human right itself? More important is the question whether a contempt of court procedure, that too initiated suo motu , complies with this human right or not.
Prosecutor and judge In the present case, as in every contempt of court case, the court is both prosecutor and judge. In the present case, this was emphatically asserted. During the proceedings on February 13, it was specifically recorded:
“It is necessary to notice, that certain counsel appeared on their own. We enquired from them, whether they were duly authorised by Sri Justice C.S. Karnan, and were in possession of a power of attorney to represent him. They had no such authorisation. These learned counsel submitted that they proposed to file impleadment application on behalf of certain organisation. The oral prayer for impleadment is rejected.
“Since contempt proceedings are a matter strictly between the court and the alleged contemnor, anyone who enters appearance and disrupts the proceedings of this case in future, should understand that he/she can be proceeded against in consonance with law....”
The Supreme Court had earlier said, “The contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise. ...Justice is not hubris; power is not petulance and prudence is not pusillanimity, especially when judges are themselves prosecutors and mercy is a mark of strength, not whimper of weakness. Christ and Gandhi shall not be lost on the judges at a critical time when courts are on trial and the people (‘We, the people of India’) pronounce the final verdict on all national institutions” (the Mulgaokar case, 1978).
A rash of suo motu proceedings The contempt of court procedure is between the accused contemner and the court. The court is deciding a case which is against itself. This is clearly against the principle of Nemo judex in sua causa (no one should be a judge in his own cause). Thus, many are of the view that the law regarding the procedure in contempt of court proceedings requires substantial reform. Being aware of this dangerous dimension, the Supreme Court itself had repeatedly voiced cautions.
The change in law, making truth as a defence, has attempted to cure this a little bit. A Constitution bench in 2014 noticed it, stating: “The legal position with regard to truth as a defence in contempt proceedings is now statutorily settled by Section 13 of the 1971 Act (as substituted by Act 6 of 2006).” In view of the change in law, making truth as a defence, the procedure, even if summary, ought to be preceded by an inquiry by an independent and impartial body. This is all the more relevant in suo motu contempt proceedings. The Supreme Court and High Courts are given the power to take cognisance of contempt matters even if a case is not filed before them for the same. In Justice Karnan’s case, this power was used.
Thus, charges are not raised by anybody nor spelt out clearly. Added to this is the fact that the reasons for the order of conviction and sentence are yet to be written and pronounced.
The recent exercises of suo motu contempt powers by different benches of the Supreme Court have been in the news. Justice Markandey Katju, a former justice of the apex court, himself was a victim of suo motu contempt proceedings.
There have been suo motu contempt proceedings recently against the former president of the Board of Control for Cricket in India (BCCI), Anurag Thakur. In another recent instance, orders have been reserved against Mohit Choudhary, an advocate of record of the Supreme Court, for “making insinuation and allegations in open court hearing” with regard to the alleged wrong listing of a matter by the registry of the court.
Need to amend the law The Justice Karnan case has again highlighted the urgent need to amend the law and procedure with regard to the exercise of suo motu contempt proceedings by the Supreme Court and High Courts. Until the changes are made, the democratic sense of the polity, including the media, has a duty to scrutinise and ensure that human rights and other fundamental rights of the accused in such contempt proceedings are protected. The prophetic role of the polity in a constitutional democracy has to shift in favour of such accused. He/she is pitted against the whole might of the court, the government and the establishment. He or she is in a minority where the whole nation state is on one side and the accused is on the other. Thus, the shifting of sensibilities in favour of Justice Karnan despite the allegations against him is in tune with the idea of democratic fairness.
When the judges are judging themselves, the independence of the judiciary requires to be protected against itself. The greatest threat to the independence of the judiciary can be sometimes from within. The late former Chief Justice of India, Y.V. Chandrachud, on laying down office in 1985 after a tenure of seven years, the longest so far, made a poignant observation: “There is greater threat to the independence of the judiciary from within than without... A little introspection may be useful in this regard. I expand on it as I see the danger.”
The Supreme Court enjoys vast powers and final authority. Surely, it must be under constant vigilance and responsible criticism. Justice Warren Earl Burger, months before becoming 15th Chief Justice of the United States Supreme Court, observed in 1969: “A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis.”
Justice V.R. Krishna Iyer was categorical: “But judges decide their own causes and, if exposed brashly, take contempt proceedings or otherwise show displeasure. And the Bar-Bench coalition conceals from public view the ugly process of the judiciary.” He was emphatic: “Never should the machinery and methodology for eradication of judicial delinquency possess intimidatory or ingratiatory potential. That will be fatal to judicial independence.”
Plato had asked, “Is it more advantageous to be subject to the best of men or the best of laws?” And he preferred a philosopher king. But Aristotle rejected the all-wise ruler: “To invest man with authority is to introduce a beast, as desire is something bestial, and even the best of men in authority are liable to be corrupted by anger.” Law in contrast, is “intelligence without passion”. Suo motu contempt proceedings run the risk of being guided by passion without intelligence.
M.P. Raju is an advocate practising in the Supreme Court of India.