The rules of law apply to error-prone humans, hence they need to be tempered with compassion and pronounced with humility. To judge a fault in full is itself a fault was the Senecan caution to all adjudication. By finding Justice CS Karnan guilty of contempt of court, punishable with six months of imprisonment, the Supreme Court of India has tripped on both law and compassion.
Stretching the law
The Constitution of India prescribes a procedure for the removal of judges. After an inquiry according to prescribed procedure, on specified grounds, a judge can be removed from office if impeached by the Parliament. The Constitution creates no hierarchy between the Supreme Court and the High Court. The Supreme Court possesses no power to discipline the judge of a High Court. As the advocate Indira Jaising pertinently remarked, what the court cannot do directly it cannot do indirectly by invoking its power of contempt.
This power of contempt was exercised without hearing Karnan because he did not submit to the jurisdiction of the Supreme Court although he was given several opportunities to explain his conduct. Hearing is an integral component of any fair procedure. That such a hearing could not happen further compromises the order of the Supreme Court. The act of issuing the contempt notice to Karnan cast the proceeding as an interrogation in which only one side had the power to ask questions. The other could only respond to the questions, not alter the framing of the dispute.
While the judge was alleging caste discrimination, the Supreme Court was concerned with misconduct and insubordination. Karnan, by refusing to respond to the charges of insubordination, did not allow his experience of casteism to be subsumed within the majoritarian discourse of protocol, discipline and hierarchy. The Supreme Court gave short shrift to his complaints of casteism.
The charges of caste discrimination, I was told in private conversations, were not given credence because they were strategically used by Karnan to be a law unto himself. If caste was being used to cloak ineptitude, corruption or even incapacity, then it was imperative that the matter be addressed in accordance with the procedure prescribed by law.
Karnan was not the first judge who was seen to be derelict in his duty. Then why was he alone not charged in accordance with the law? Or does the corruption and misconduct of a Dalit judge also smack of presumption and, hence, needs to be peremptorily addressed. People of privilege, it is often said, are blind to the advantage that their caste and class provides them. Insofar as justice is not only to be done but also seen to be done, is not the privileged composition of the Bench, which found the judge guilty, one more cause for concern.
For want of compassion
A High Court judge who, among other acts, issues notices to Supreme Court judges, holds them guilty of breaking the law, orders their passports impounded is not an everyday occurrence. His actions could definitely be seen as out of the ordinary if not eccentric, bizarre and more. The behaviour could also be seen as a cry for help by a distressed judge confronted with endemic caste discrimination. In the larger discourse of discipline and order, appeals for empathy and support fell by the wayside.
If support was not extended, then neither was the apex court willing to leave him alone. Consequently, senior advocate KK Venugopal’s plea to let the judge fade into the sunset, as he would retire in June, was also turned down. The court was willing to leave Karnan be, but only if he was found to be mentally incompetent by a medical board.
Both a medical examination and a finding of mental incompetence have been recognised as infringements of personal liberty, which can be undertaken only according to procedure established by law. Such procedures exist on the statute book but none of them were even examined by the court. It is trite to say that the court can use its constitutional powers to protect and not deprive the people of their rights.
It is a historically established fact that inexplicable behaviour is often labelled as “mad”. Insanity has been routinely used as an instrument of social control, especially against socially disadvantaged people and groups. The medical examination order of the Supreme Court was an effort to discipline a sitting High Court judge by this route. The failure of that attempt should have caused the court to pause and opt for studied inaction. Instead, the muscle of the court prevailed over the rule of law, and authoritarianism trumped compassion.
Amita Dhanda heads the Centre for Legal Philosophy and Justice Education at NALSAR University of Law, Hyderabad.
