Cover Story

Justice without fairness

Print edition : June 09, 2017

Justice C.S. Karnan in Kolkata on May 4. Photo: AFP

Justice J.S. Khehar, the Chief Justice of India. Photo: R.V. Moorthy

The Supreme Court’s order convicting and sentencing Justice C.S. Karnan raises serious questions about the court’s commitment not only to natural justice but also to freedom of expression.

Truth is stranger than fiction. What actually happens is sometimes more bizarre than anything that could be imagined. Until May 9, no one could have imagined that a High Court judge in India could be held guilty of contempt of the Supreme Court and sentenced to six months’ imprisonment. Until May 18, when this issue went to press, no one could have imagined that a High Court judge, after being held guilty and sentenced to imprisonment by the apex court, could be on the run, evading the process of law or that the Supreme Court’s direction to the police to execute its order to imprison a sitting High Court judge would remain unimplemented beyond a week because the judge was untraceable.

As the Justice C.S. Karnan saga becomes more and more bizarre, the initial derision that greeted Justice Karnan, a sitting judge of the Calcutta High Court, when he took on the Supreme Court after it initiated contempt of court proceedings against him soon turned into scepticism about the very powers of the Supreme Court to punish him for contempt in the manner it chose to.

The Supreme Court took suo motu cognisance of a letter written by Justice Karnan on January 23 to the Prime Minister seeking an investigation into allegations of corruption by certain judges of the Madras High Court. On February 8, a seven-judge bench of the Supreme Court comprising the first seven senior-most judges issued notice to Justice Karnan and directed him to refrain from handling any judicial and administrative work as may have been assigned to him in furtherance of the office held by him. He was also directed to return all judicial and administrative files in his possession to the Registrar General of the High Court immediately.

The bench comprised the Chief Justice of India, Jagdish Singh Khehar, and Justices Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, Pinaki Chandra Ghose and Kurian Joseph. Justice Ghose retires on May 27.

On February 13, when the bench heard the case against Justice Karnan again, it took note of his absence, despite notice, and his communication to the Registry of the Supreme Court. The bench also took note of the fact that Justice Karnan had not authorised anyone to represent him as counsel in this case. Unaware of the reasons for his absence, the bench chose to grant him another opportunity and adjourned the case to March 10.

The bench made it clear on February 13 that since contempt proceedings were a matter strictly between the court and the alleged contemner, anyone who entered an appearance and disrupted the proceedings of the case could be proceeded against in consonance with law. “No one should appear in this matter, without due consent and authorisation [of Justice Karnan]”, the Supreme Court further said.

On March 10, the bench again took note of Justice Karnan’s failure to appear before it despite the notice of the suo motu petition having been served on him. Meanwhile, Justice Karnan had sent a fax message to the Registry of the Supreme Court on March 8 seeking a meeting with the Chief Justice and the other judges of the Supreme Court in order to discuss certain administrative issues expressed therein. The bench noted that the fax message reflected the allegations of Justice Karnan against certain named judges. “The above fax message, dated 08.03.2017, cannot be considered as a response of Shri Justice C.S. Karnan either to the contempt petition or to the notice served upon him,” the bench held in its order.

The bench thus found no alternative but to seek his presence in the Supreme Court on March 31 by issuing a bailable warrant through the Director General of Police, West Bengal.

On March 31, Justice Karnan appeared before the Supreme Court bench as directed by it. The bench repeatedly asked him whether he affirmed the contents of the letters written by him as were available on the record of the case. He was also asked whether he would like to withdraw the allegations. The bench asked this question on the basis of his letter dated March 25, which he personally handed over to the bench on March 31. The bench observed: “He has not responded, in any affirmative manner, one way or the other. We would, therefore, proceed with the matter only after receipt of his written response. Shri Justice C.S. Karnan is hereby called upon to respond to the factual position indicated in the various letters addressed by him to this court within four weeks from today.”

The bench declined to permit him to discharge judicial and administrative duties, as he requested, and directed him to appear in person on the next date of hearing.

Meanwhile, Justice Karnan complied with the previous direction of the Supreme Court to vacate the official bungalow allotted to him at Chennai (when he was a judge of the Madras High Court before his transfer to the Calcutta High Court) and hand over its vacant possession to the Registrar of the High Court.

On May 1, the Supreme Court’s seven-judge bench noted that Justice Karnan had been expressing further disrespect to the Supreme Court and making press statements with abject impunity. The bench took note with seriousness Justice Karnan’s orders (purported to be judicial) against the seven members of the bench and another judge of the Supreme Court. Therefore, it directed all Courts, Tribunals, Commissions or Authorities not to take cognisance of any orders passed by him after February 8, when the Supreme Court initiated contempt proceedings against him.

On May 1, the Supreme Court doubted Justice Karnan’s mental fitness to defend himself in the contempt proceedings in view of the tenor of his press briefings and the “judicial orders” passed by him. Therefore, it ordered the Director of the Health Services, Government of West Bengal, to constitute a board of doctors from the Pavlov Government Hospital, Kolkata, to examine him on May 4 and submit a report to the court whether he was in a condition fit enough to defend himself. The Director General of Police, West Bengal, was directed to constitute a team of police personnel to assist the medical board to comply with its order.

Serious misgivings

The order led to serious misgivings whether the court had the power to force anyone to undergo a medical test on the assumption that he might suffer from mental illness. Justice Karnan received the medical board with respect, but refused to undergo any test claiming that he did not suffer from any mental illness. The doctors, who rightly refrained from forcing a test on him, could not comply with the Supreme Court’s directions.

Ironically, on May 1, the bench also allowed Justice Karnan, “if he is so advised”, to furnish his response to the notice issued to him in the meantime and that if he did not choose to file a response on or before May 8, it would be presumed that he had nothing to say on the matter.

It appeared as though the bench was preparing to convict and sentence him on May 1 itself by opening this window despite expressing its doubts about Justice Karnan’s fitness to defend himself in the proceedings. The bench heard Attorney General Mukul Rohatgi, who was of the view that Justice Karnan must be dealt with sternly in order to send a message that the Supreme Court would not distinguish between a judge and a non-judge while exercising its contempt power. On the other hand, senior advocate K.K. Venugopal, counsel for the Registrar of the Madras High Court in a related case in which Justice Karnan is a respondent, suggested to the bench that it need not proceed further in the matter in view of his superannuation on June 12. Eventually, the bench adopted the course suggested by Rohatgi.

On May 9, the last working day of the Supreme Court, the bench apparently felt that time was running out for both Justice Karnan and for itself and that it had exhausted all the available options to it before it could convict and sentence him for the offence of contempt of court.

The bench noted: “On merits, we are of the considered view that Sri Justice C.S. Karnan has committed contempt of the judiciary. His actions constitute contempt of this court and of the judiciary of the gravest nature. Having found him guilty of committing contempt, we convict him accordingly. We are satisfied to punish him by sentencing him to imprisonment for six months. As a consequence, the contemner shall not perform any administrative or judicial functions. Detailed order to follow. The sentence of six months imposed by this court on Sri Justice C.S. Karnan shall be executed forthwith by the Director General of Police, West Bengal, or through a team constituted by him.”

Gag on the media

While dictating the order, the Chief Justice of India, Justice J.S. Khehar, added the following, as an afterthought, which was seemingly prompted by a lawyer:

“Since the incident of contempt includes public statements and publication of orders made by the contemner, which were highlighted by the electronic and print media, we are of the view that no further statements made by him should be published hereafter. Ordered accordingly.”

The gag on the media came out of nowhere, as it was proposed neither by the Attorney General, whose assistance the bench specifically sought, nor by the bench. The suggestion did not come from Venugopal or senior advocate and president of the Supreme Court Bar Association, Rupinder Singh Suri, who was allowed to intervene in the matter.

Gaurav Bhatia, honorary secretary of the Supreme Court Bar Association, told Frontline: “We did seek stern action against Justice Karnan because he lowered the dignity of the institution by his derogatory statements. But we did not propose the gag on the media. The judges had it in their minds”.

The prior restraint imposed on the media on reporting Justice Karnan’s statements smacked of an urge to violate the solemn guarantee in the Constitution to ensure freedom of expression for trivial reasons. It is well-settled that the constitutional guarantee of freedom of expression, which includes freedom of the media, can be restricted only on certain reasonable grounds as specified under Article 19(2) of the Constitution. Although contempt of court is one of those grounds, the media was not accused as a contemner before the bench in the Justice Karnan matter. Propriety and the principle of natural justice demanded that the media should have been issued notice and heard before the Supreme Court passed its restraint order on May 9.

In its eagerness to punish Justice Karnan while he was in office and set an example to others within the judiciary and outside, the Supreme Court bench sacrificed procedural fairness, which it was keen to observe in ordinary cases. The compromise on procedural fairness meant that the Supreme Court was blamed for being unfair to Justice Karnan only because he happened to be a judge and, therefore, depriving him of the legal safeguards that are available to a common citizen.

One such legal safeguard is the rule that nobody can be convicted or sentenced without a reasoned judgment. On May 9, the bench observed in its order that the details would follow later. The bench apparently thought that because some of the judges on the bench would not be available during the summer vacation, it would not be prudent to wait until the reopening of the Supreme Court after the vacation, as in the meantime Justice Karnan would have retired. In any case, the bench may have to be reconstituted because of the impending retirement of Justice Ghose on May 27, and the matter is still pending for final disposal.

It is not that a judge cannot be punished for contempt of court after his retirement. But the bench’s unstated objective was to send Justice Karnan to jail while he continued to be in office as a judge in order to demonstrate that it applied its contempt powers irrespective of whether a person happened to be a judge or a non-judge (see interview with advocate Raju Ramachandran on page 20).

The second principle that the bench sacrificed in its obsession with punishing a judge while in office was not to pronounce the convicting and sentencing orders on the same day. All courts are expected to separate these two and deliver them on two different days in order to grant an opportunity to hear the convict separately on sentencing. It is meant to protect the sentencing bench from any unconscious bias which might result after finding a person guilty of an offence, leading to disproportionate punishment. The gap of a few days between the conviction and the sentencing is considered essential for the bench to apply its cool mind to the mitigating factors, which may be advanced by the convict who may require some time for such reflection and the making of a plea.

In the case of Justice Karnan, the doors for his apology ought not to have closed under the law on May 9 when the bench found him guilty. The Contempt of Courts Act permits a convict to offer apology and thereby seek mitigation of the sentence. The court could not have assumed that he might not offer apology or regret his actions if it pronounced the order of conviction first and sentence later. This is a serious infirmity.

Procedural safeguards

On the same day, another bench of the Supreme Court, of Justices Adarsh Kumar Goel and Uday Umesh Lalit, found business tycoon Vijay Mallya guilty of contempt of court because he transferred $40 million to his three children in contempt of the orders passed by the Karnataka High Court and sought to subvert the course of justice by shielding them from ongoing recovery proceedings by such transfer of funds. Earlier, the Supreme Court had asked Mallya to make a complete disclosure of his assets in the case filed against his company by the banks which alleged defrauding on loans sanctioned to him. Mallya did not disclose the details of the bank account held in Edmond De Rothschild Bank in Switzerland through which he transmitted funds to his children.

Unlike Justice Karnan, Mallya did not appear before the Supreme Court in the contempt proceedings even once. Again, unlike Justice Karnan, Mallya did not file any reply to the contempt petition. But the court found him entitled to procedural fairness, precisely because of these two grounds, and said it deemed it necessary to give him one more opportunity and also hear him on the proposed punishment.

The court thus adjourned the matter to July 10 for hearing Mallya in person on the proposed punishment to be awarded to him for contempt of court. Mallya was specifically asked to keep his affidavit ready to be tendered on the same day by stating mitigating circumstances, if any, and any other submissions he chose to advance. The court directed the Ministry of Home Affairs, Government of India, to secure and ensure the presence of Mallya before the Supreme Court on July 10, knowing fully well that he was a fugitive in the United Kingdom and was unlikely to return on his own.

Justice Karnan may well be guilty of contempt of court as the Supreme Court has found. But the question why it deprived him of the procedural safeguards that were extended to Vijay Mallya on the same day for the same offence may continue to trouble the Supreme Court’s conscience.

The Supreme Court may well have invoked its contempt powers against Justice Karnan in order to uphold its majesty, institutional honour and reputation. But it allowed these very virtues to be eroded by its indifference to well-established principles of procedural fairness and natural justice.

Justice Karnan appeared to have exhausted his legal remedies with the refusal of the Supreme Court’s Registry on May 12 to accept his writ petition challenging the validity of the May 9 order. His application for the recall of the order also appeared to have been rejected as both were found to be non-maintainable. Attempts by his counsel, Mathews J. Nedumpara, to mention the matter before the Chief Justice of India during the hearing of the triple talaq matter by the Constitution Bench was rebuffed by the CJI with a stern warning. With the judiciary closing its doors on him, Justice Karnan’s only hope appears to be the President's power under Article 72 of the Constitution to suspend his sentence. Under Article 72 (1) (b), the President has the power to suspend the sentence of any person convicted of any offence in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends.

Justice Karnan’s contention is that the Supreme Court’s sentence overrides the power of the President to remove him after an address by Parliament has been presented to him in the manner required by Article 124(4) of the Constitution.

Indictment of the collegium system

Whatever the denouement in Justice Karnan’s saga, it is also an indictment, implicitly, of the collegium system of appointing judges begun by the Supreme Court in the Second Judges case in 1992.

The Supreme Court revived the collegium system in 2015 after it struck down the National Judicial Appointments Commission (NJAC) Act, 2014, which briefly eclipsed it.

Justice Karnan was first recommended for appointment as a judge by the Madras High Court’s collegium, which was later approved by the Supreme Court’s collegium comprising the Chief Justice of India and two senior-most judges.

It is not that aberrations like Justice Karnan’s appointment cannot happen in any other system of appointing judges other than that of the collegium. But the collegium system was inherently prone to give rise to such aberrations because of its lack of transparency.

Had the process of appointment been more transparent than what was possible under the collegium system, factors for and against Justice Karnan’s suitability for the post of the judge could have come to light and considered suitably by the collegium before it finalised its binding recommendation to the government.

Coming at a time when the government and the Supreme Court are engaged in a tug of war on the finalisation of the revised Memorandum of Procedure (MoP) for appointing judges of the higher judiciary, the Justice Karnan episode appears to give an edge to the government, which seeks primacy in the appointment process through the back door.

The government, which opposed the collegium system during the debate on the NJAC, now feels vindicated in the aftermath of Justice Karnan’s conviction and sentence as he was a product of the collegium.

The Supreme Court may feel triumphant in having exercised its contempt jurisdiction over Justice Karnan with its full might. However, it has emerged weaker than it was in its battle for supremacy with the government, which could now use the Karnan episode to make the collegium cede more space to it in the appointment process.

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