A wake-up call

The Supreme Court releases its detailed judgment in the Justice Karnan case but leaves key questions unanswered.

Justice C.S. Karnan in Coimbatore on June 20 on his way to Chennai following his arrest on the outskirts of the city. He retired as a judge of the Kolkata High Court on June 12 while he was on the run evading an arrest warrant issued against him by the Supreme Court.

ON May 9, the Supreme Court’s seven-judge bench convicted and sentenced the then sitting judge of the Calcutta High Court, Justice C.S. Karnan, to six months’ imprisonment for contempt of court. The bench said in its order that detailed reasons would follow later.

On July 5, in a departure from the convention of pronouncing judgments in open court by all the judges who delivered it, the Supreme Court uploaded the detailed judgment on its website, supremecourt.gov.in, and left it at that. The surprise was that all the seven judges purportedly signed it on May 9 itself, while two of them signed a separate but concurring judgment on July 4.

The surprise turned into a serious anomaly as one of the seven judges who delivered the order on May 9, Justice Pinaki Chandra Ghose, retired on May 27, and would have been unavailable for signing the detailed judgment, which was uploaded on July 5, if it was dated after his retirement.

Will this anomaly vitiate the May 9 order of conviction and sentence, and as a consequence, the detailed judgment uploaded on July 5, although the latter only vindicated the former? Although the anomaly, on the face of it, seems to be a technical flaw, the Supreme Court had held in many cases earlier that a judgment delivered after the retirement of a judge or without his signature could not be legal and the case would have to be heard afresh.

Justice Karnan, who retired on June 12, went into hiding, making it impossible for the West Bengal Police to execute the Supreme Court’s May 9 order. However, on June 20, he was arrested in Coimbatore, Tamil Nadu, and lodged in Presidency Jail, Kolkata.

In a review petition filed in the Supreme Court against the May 9 judgment, Justice Karnan raised the issue of propriety of uploading the judgment on July 5, while pretending that it had been signed by all the seven judges on May 9 itself. Observers, however, doubt whether the Supreme Court would agree with his interpretation that the May 9 decision should be considered as void on this ground, and, therefore, grant him liberty.

The detailed judgment uploaded on July 5 was vulnerable on other grounds as well. The main judgment, authored by Chief Justice J.S. Khehar on behalf of himself and the other six judges, concluded that Justice Karnan’s actions constituted the grossest and gravest contempt of court.

The bench claimed that it carefully examined the text of the letters written from time to time by Justice Karnan levelling allegations of corruption against other judges. It said it had also examined the suomotu procedure adopted by Justice Karnan to pass orders that were derogatory to the administration of justice before he was issued notice for contempt. The bench also analysed the orders passed by him suomotu even after the issuance of the contempt notice to him.

“His demeanour was found to have become further aggressive, after this court passed orders from time to time, in this case.... His public utterances turned the judicial system into a laughing stock. The local media, unmindful of the damage it was causing to the judicial institution, merrily rode the Karnan wave. Even the foreign media had its dig at the Indian judiciary,” the bench said in its judgment.

The bench gave a list of 33 judges against whom Justice Karnan had levelled “obnoxious” allegations. The list included several judges of the Supreme Court and the Madras High Court.

The main reason for sustaining the contempt charge, it would appear from the judgment, was that none of the allegations levelled by him was supported by any material. “His allegations were malicious and defamatory, and pointedly by name against many of the concerned judges. He carried his insinuations to the public at large, in the first instance by endorsing his letters carefully so as to widely circulate the contents of his communications to the desired circles.... And later through the Internet he placed his point of view, and the entire material, in the public domain,” the bench explained.

No specific ground

Although the main judgment gave a fairly good account of the sequence of events that culminated in the May 9 order, it did not invoke any specific ground under the Contempt of Court Act to justify his conviction.

But the bench explained why it gagged the media from publicising any further statements issued by Justice Karnan on May 9. “During the course of hearing of the instant contempt petition, his ridicule of the Supreme Court remained unabated. In fact, it was heightened as never before. In this process, he even stayed orders passed by this court. One of the orders passed by him restrained the judges on this bench from leaving the country. By another order, he convicted the judges on this bench, besides another judge of this court, and sentenced them to five years imprisonment, besides imposing individual costs on the convicted judges,” the bench said, and continued: “The instant restraint order [on the media] does not prevent or hinder any public debate on the matter, academic or otherwise. We have not restricted the media in any manner other than to the limited extent expressed above. We hope and expect that a meaningful debate would lead to a wholesome understanding of the issue from all possible perspectives.”

The bench recorded in the judgment that none of his actions could be considered bona fide, especially in view of the express directions issued by the court on February 8 requiring him to refrain from discharging any judicial or administrative work.

On May 1, in order to restrain his abuse of suomotu jurisdiction, the Supreme Court passed another order restraining courts, tribunals, commissions and authorities from taking cognisance of any order passed by Justice Karnan. Therefore, the question why the Supreme Court took cognisance of his orders itself for the purpose of contempt proceedings even while asking others to ignore them remained unanswered.

Furthermore, if the media merely reported both the Supreme Court’s direction to other judicial bodies not to take cognisance of Justice Karnan’s orders and Justice Karnan’s orders—because they had news value—it was not clear why the Supreme Court sought to restrain the media from reporting whatever Justice Karnan would say from May 9. Specifically, should the bar apply to statements of Justice Karnan that may not be contemptuous of the court or even those he may make after his release from prison? The court had no answers.

While concluding that he committed contempt in the face of the court, the bench did not cite a single instance of his behaviour that amounted to this offence, as he appeared before the court only once, on March 31 during the contempt proceedings, and on that day the bench did not record any of his actions that amounted to contempt of the court.

The separate judgment, authored by Justice J. Chelameswar on behalf of himself and Justice Ranjan Gogoi, however, held that the frequency and gravity with which Justice Karnan made allegations against his colleagues and the manner in which such allegations were made public “certainly would have some adverse impact on the reputation of the individual judges against whom allegations are made, the image of the Madras High Court and perhaps is likely to undermine the credibility of the judiciary in this country”.

Justice Chelameswar concluded that the post-notice conduct of Justice Karnan, when he passed several judicial orders, which, even on a cursory glance, were contemptuous in nature and content, brought disrepute to the judicial system and had the potential of shaking the confidence of the average citizen in the system. Such conduct and action, if tolerated, would certainly reflect an element of weakness in the system; no such weakness can be allowed to enter the system, he held. He held Justice Karnan guilty both for scandalising the court and for interference with the proceedings of the Supreme Court.

Appointment of judges

Justice Chelameswar, however, added that the case highlighted the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels, and the need to set up an appropriate legal regime to deal with situations where the conduct of a judge of a constitutional court required corrective measures, other than impeachment, to be taken.

Justice Chelameswar cautioned that there were various other instances (mercifully, which are less known to the public, as he put it) of conduct of some of the members of the judiciary which certainly would cause some embarrassment to the system.

Justice Karnan is sure to ask, “If so, why single out me, rather than punish those guilty in other instances?” Has Justice Karnan been punished only because media publicised his contemptuous actions? As he did not have any control over the media, should he suffer only because the media reported his actions and not of others, which may be equally contemptuous? The unfortunate conviction and sentencing of Justice Karnan is indeed a wake-up call for the judiciary.