‘They are usurping the power of removal of judges’

Labelled a maverick by a section of the media owing to his penchant for calling a spade a spade, Mathews James Nedumpara, son of Joseph Nedumpara, a schoolteacher who retired as Headmaster, has travelled a long way from Pala, his hometown in Kerala, to make his presence felt not only in the Supreme Court but in all courts in the country. He has behind him 33 years of legal practice.

Nedumpara, or MJN to friends, runs Campaign for Home for All, which seeks to address the housing needs of the poor and the downtrodden labour class in Mumbai. Besides, he is the president of the National Lawyers Campaign for Judicial Transparency and Reforms (NLCJTR), a movement of 7,000 lawyers and laymen seeking judicial accountability. He was in favour of the National Judicial Appointments Commission (NJAC) that the Supreme Court struck down in 2015. He claims that Justice Karnan has been illegally prosecuted and sentenced to imprisonment.

Excerpts from an interview he gave Frontline :

Why do you think the Supreme Court invoking its powers to punish Justice Karnan for contempt was flawed?

There is no jurisdiction. There is a method of removal of a judge for proved misconduct under the Judges Inquiry Act. The net effect [of the contempt proceedings] is that what you cannot do directly you are doing indirectly. Under the Constitution, judges are not the appointing authority. They are mere appointees. The President is the appointing authority. They [the Supreme Court] usurped the power of appointment [through the Second Judges case in 1992]. Now they are usurping the power of removal.

The answer to this criticism is that the Contempt of Court Act does not distinguish between a judge and a non-judge.

In theory, it does not make a distinction. This is the first time it has been invoked against a judge. If it makes a distinction, it is liable to be struck down. It should apply to everybody. But the Act is meant to be invoked against somebody who actually interferes in the administration of the judiciary. If Justice Karnan’s allegations against other judges are true, then the judges who were accused of corruption are guilty of contempt. The purpose [of the Contempt of Court Act] is to make courts function, not to protect individual judges. Karnan’s attack is on the individual judges, not the court. This Act has been used to discipline a High Court judge. The Supreme Court is not the disciplinary authority of High Court judges. The disciplinary authority is Parliament. Where do we get the proposition that every power is in the Supreme Court? They are legislating.

What should the Supreme Court have done?

There is a Parliament and an Executive government. If Justice Karnan has exceeded the limits, there is an active Bar also. Public opinion is there. They would have come forward. The Supreme Court has no business to peep into it at all. The court should get rid of the current perception which it carries that it is the answer to every deficiency in the Executive government, every malaise.

There is an erroneous assumption that democracy is dependent on the judiciary alone. That concept has to go. Then we become a judgocracy. Our campaign is against the Contempt of Court Act. We seek its abolition. It is used only in India, Pakistan and Bangladesh. The judiciary is like other departments of the state and ought to be subjected to public scrutiny. The judiciary should command respect.

During the hearing of the case, you wanted to represent Justice Karnan but did not have the vakalatnama signed by him. The bench, therefore, did not allow you to defend him. How did you get Justice Karnan’s consent after the Supreme Court sentenced him to six months’ imprisonment?

I had every authority. I required time to receive the vakalatnama. Meanwhile, I can have the watching brief, the vakalatnama can be filed later. In criminal matters, I can have just a memo of appearance, I don’t need a vakalatnama. I should have got the time to say all these. Before I could reply, I was asked to sit down by the Chief Justice. So what would I do?

In your view, was Justice Karnan an undeserving Judge who was erroneously appointed under the collegium system?

He has suffered enormous discrimination. Prudence demands that he should have been silent. He wanted to give vent to his hurt feelings. He should have suffered in silence and let others speak on his behalf. Justice Karnan was not very practical. That is where he failed.

All his sentencing orders against Supreme Court judges are perceived as disproportionate responses to the contempt proceedings against him.

I agree with you. He says he did it because he felt that the Supreme Court did not have the power. According to him, Supreme Court judges were abusing their power to punish for contempt. High Court judges and Supreme Court judges are equal; the only difference is that the Supreme Court is the court of appeal. Justice Karnan is saying, “If they abuse the power, I also I have the same power. I can retaliate.” When you do that, it turns public opinion against you. Any person in public life must have two eyes. One is [to see] what I do is right or wrong. Second [is to see] whether what I do is right or wrong in the public perception.

His response is that they are abusing. If I am abusing, are they not doing the same? It is more of a retaliation.

But has Justice Karnan not exhausted his legal remedies in the contempt matter?

Our petitions have not yet been decided. No criminal can be convicted without a judgment. It is a fundamental [need of] jurisprudence. Only after the judgment you pass the sentence.

Would that vitiate the Supreme Court’s order convicting and sentencing him?

Absolutely. It has never happened in judiciary.

What are the remedies that you intend to pursue further?

We will pursue the Article 32 petition. Every problem ought to have a solution. The excuse that the same bench of seven Judges should hear, etc., is not an inviolable law. My petitions have to be discussed and argued. Access to justice is my right.

Even if the sentencing is wrong, should not Justice Karnan surrender?

I am entitled to protect my freedom. All legal remedies are open to me. The Chief Justice of India says he cannot constitute the same seven-judge bench before the vacation ends. He says, “We have taken a conscious decision.” But that does not mean that is the end of it. Tomorrow, another bench may review, revise the decision. Certain legal infirmities are there, which are so manifest and have to be remedied.

We are not evading. We have been mentioning, trying to bring it up.

But why is Justice Karnan hiding?

Is he liable to declare to the whole world where he is in Chennai? I have informed the West Bengal Director General of Police that Justice Karnan is not attempting to evade arrest, and his intention is to challenge the validity of the Contempt of Court Act, 1971, under Article 32 of the Constitution as well as place an application for recall of the Supreme Court’s orders against him.

Is Justice Karnan prepared to apologise to the Supreme Court? Is that what you told the court?

Legally, no one can be compelled to apologise. I told the court that I could persuade my client, as a matter of reconciliation, to offer regrets without compromising his rights and legal contentions. To err is human. Reconciliation has a soothing effect. It was as part of court craft that I told the court that the honourable judge had erred. It was more like an informal statement. But now the apology chapter is closed.

Secondly, my contention is that the opportunity to apologise under the proviso to Section 12 of the Contempt of Court Act was not given to Justice Karnan. On the same day that Justice Karnan was found guilty of contempt of court and sentenced to six months imprisonment, another two-judge bench of the Supreme Court found the business tycoon Vijay Mallya guilty of contempt of court and adjourned the matter to July 10 for hearing him in person on the proposed punishment.