In The Advocate, a documentary film on one of India’s finest constitutional minds KG Kannabiran, he recalls defending Naxalites in the Andhra Pradesh High Court. “Why are you defending these people who do not respect the Constitution, Mr Kannabiran?” the judge asked him.
“What is on trial here is not their respect for the Constitution,” he replied, “but yours.”
The Supreme Court’s proceedings against Justice CS Karnan evoke a similar reaction.
Not many would contest that Justice Karnan did much to make a cruel and embarrassing joke of the judiciary. He was, of course, not the first person to have alleged corruption and unacceptable conduct among members of the judiciary, but he made a virtue of levelling all manner of accusations against his colleagues and abusing judicial power in ways that would have been unimaginable, except they actually happened.
So, this is not about what we may think of Justice Karnan’s conduct. The problem is with how the Supreme Court dealt with the issue, and how they understood the Constitution.
Seven judges sat together to hear the contempt case against Justice Karnan. The rule is that Benches of two or three judges decide cases; larger benches are the exception. If an earlier decision of the court is under challenge and needs to be revisited, that may require a Bench larger than the one that made the original decision. Or, as Article 145(3) states, a Bench of five judges may sit to hear and decide a case that involves “a substantial question of law”. There was, in fact, such a question in this case: when the only way to remove a judge is through impeachment and there is no move to impeach, what is the court to do?
In Justice Karnan’s case, there were only suo motu contempt proceedings, and, as far as anyone can tell, no constitutional question was set out by the court. How did this justify a seven-judge Bench? That too, remember, when the Chief Justice of India has been refusing to have the Aadhaar-related cases heard – despite flagrant violations of its orders by the government that threaten the rights and liberties of this country’s people – because he cannot spare the judges.
So, what explains this extraordinary treatment meted out to Justice Karnan that relies on the law of contempt to bypass constitutional procedure?
In the case of Justice Soumitra Sen, the court had devised an in-house procedure and recommended to the Parliament to impeach him. Why was that not done this time?
Justice Karnan may have chosen not to appear before the seven-judge Bench or be represented, but the Supreme Court has a system of appointing amicus who disinterestedly helps it unknot the legal complexities involved in a case. This was the first time they were considering convicting a sitting High Court judge for contempt. How could they not have thought it necessary to take the assistance of an amicus?
The court decided to punish the judge with six months imprisonment, the maximum permitted by the law of contempt. Although everyone is entitled to be heard on the matter of their sentencing, the court did not give Justice Karnan that chance. Maybe he would have done something outrageous if given the opportunity, but that does not absolve the court from following the procedure prescribed by law.
On the same day Justice Karnan was sentenced, Vijay Mallya, who has been thumbing his nose at the court, was held to be in contempt. The two judges hearing his case put him on notice, saying, “Though we have found him guilty of having committed contempt of court, we deem it necessary to give him one more opportunity and also hear him on the proposed punishment.”
Justice Karnan’s conviction and sentence was pronounced in a two-page order, which stated that “detailed order [is] to follow”. So, the judge was sent to prison but he would not know why until a date in the future. The Bench did not state under what authority they ordered that he “shall not perform any…judicial functions”. Why was there such a hurry to punish Justice Karnan? Why could it not wait until the court was ready with the reasons?
Further, where did the judges find the authority to impose a gag order on the press? The public interest in the utterances of a public office-holder is surely a matter for the press to decide. Again, there is no explanation why the press was being ordered into silence, nor a setting out of the principles on which such an order is based.
Seven judges of the Supreme Court have arrived at what is the first and the final determination of a case in which they have institutional interest. There is nowhere to appeal against this order. Justice Karnan is left without recourse. So is the press, which, without being heard, must partake in his punishment.
If so much power rests in one court to punish and gag, and it were to be used by a judge such as Justice Karnan to issue orders that cannot be appealed, consider the implications. After all, Justice Karnan did get appointed as a High Court judge, so who is to say how much higher in the hierarchy he may have risen. (While on this subject, may we ask how his appointment was made in the first place?)
Extraordinary situations demand extraordinary care and respect for the Constitution, and for law and procedure, especially when the liberty and the rights of people are at stake. This case, unfortunately, is a classic illustration of the axiom that “hard cases make bad law”.
Usha Ramanathan is a legal researcher who works on the jurisprudence of law, poverty and rights.