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Inadequacies within the judicial system which limit action against sitting judges is what Justice CS Karnan is exploiting

~By Sujit Bhar

The controversial case of Justice CS Karnan of the Calcutta High Court is being keenly followed by the judicial world, not quite because of Justice Karnan per se but because there is curiosity about what the Supreme Court can really do to address Justice Karnan’s intransigence which has brought to light the inadequacies that exist within the judicial system. And this is what the government seems interested in exploiting.

Justice Karnan, who had sent a letter to the Prime Minister, with allegations of corruption against 20 judges of the Supreme Court and high courts, has had a running battle with Chief Justice of India, JS Khehar, and six other judges of a constitution bench that has been formed to tackle his allegations. This fight is on for over three months now.

Meanwhile, Justice Karnan, though stripped of all his judicial powers, has been running a “court” at his official residence in Kolkata from where he has not only “summoned” the seven judges and but has also issued an “order” which bars them from leaving the country. The entire farce has now come to such a pass that the Supreme Court bench has ordered a medical test to prove his sanity. Karnan has so far stubbornly refused to submit to this.

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To be fair, the constitution bench has dealt with Justice Karnan with kid gloves. But while its patience is wearing thin, Attorney General Mukul Rohatgi’s insistence for immediate action is bringing the executive-judiciary tussle into focus as well. The bench is treading softly.

If one follows the arguments in court relating to the case, it is clear that the constitution bench, headed by Chief Justice JS Khehar, has had a tough time taking a position. The bench asked for advice from Rohatgi, but if his line of argument was to be considered, the bench should start firing on all cylinders pushing towards Karnan’s final punishment.

Senior advocate of the Supreme Court, KK Venugopal, gave an alternative picture. Venugopal, who had appeared in a related matter at the Madras High Court (which was Justice Karnan’s original court before being transferred to Kolkata) had this submission to make before the Supreme Court  on May 1: “It is clear that he (Justice Karnan) cannot be taken seriously. He is retiring in June. Otherwise it should have been impeachment. What purpose will be served by putting him in jail? He is not in a sane position. Adjourn the matter post his retirement. Look at his letters, they are so atrocious. It shows he is not in a position to think.”

Venugopal was reacting to Rohatgi’s comment in court after Justice Karnan failed to present himself on May 1.

The Attorney General had said: “He is not present and he has been passing orders against hon’ble judges after the last hearing.”

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Sujit Bhar spoke to Justice CS Karnan’s lawyer

Peter Ramesh Kumar is Justice CS Karnan’s lawyer. Kumar had been practising with the Madurai bench of the Madras High Court. He says that he was also president of Madurai Bar Association for eight years, till 2015, when “an RSS-backed group took over the reins and I, was booked for contempt. I had to spend six months in jail, just because I refused to join the RSS-backed side.”

Kumar spoke to India Legal over phone from Madurai. Two things he said are pertinent. He believes Justice Karnan has no way out but to spend six months in jail and pay a fine for contempt. “After June 11, his retirement, all this will come together,” he says. “Till then, Karnan will fight.”

The second point that he specially emphasises—he says his client Justice Karnan also believes this—is on the RSS links within the judiciary. “Some  of the 20 judges that Karnan had complained about in his letter to the Prime Minister have RSS links,” says Kumar. When it is pointed out that this was a rather serious charge to level, Kumar says “This is the truth, and you can quote me on this.”

So what about the Dalit angle and the caste-hate angle that Karnan has been harping all along? “That is certainly there but it is not possible for a judge to paint the top judiciary in RSS colours in public. Hence he took the Dalit angle.”

Adds Kumar: “RSS-backed lawyers in Madurai forced several renowned lawyers out of their jobs. They have spread their tentacles in the judiciary as well. Karnan wanted to tell this to the Chief Justice in his chambers but that was not possible.” Karnan did meet Chief Justice JS Khehar, but no such discussion supposedly took place.

To that the Chief Justice Khehar commented: “On February 8 we had directed him to forthwith refrain from any administrative or judicial work. So what he has done after that order is contemptuous. His conduct is exfacie contempt.”

When Rohatgi insisted:“His mental balance is lost,” the Chief Justice made an interesting and pertinent point. He said: “If it is so, he is not responsible.”

However, Rohatgi had countered: “He is a judge and was doing work. He cannot say that one day he is fine next day he is not. Calling SC judges accused… The court has been more than patient. If your lordships don’t act now what will happen later?”

Does that establish that Justice Karnan was actually conducting normal work before this incident? Or does it tend to establish that the judiciary has not been able to separate the wheat from the chaff and that the primary selection process might have been faulty? This is the case of the sanctity of the current Memorandum of Procedure (MoP) that the judiciary and the executive are warring over.

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One needs to look back at some events at the Madras High Court, to get a clearer picture after Karnan’s elevation from a lawyer on the civil side to judge on March 30, 2009. In a little over two years, he had hit out at brother judges in a complaint to the National Commission for Scheduled Castes (NCSC).

In November 2011 he complained about how he was being harassed and victimised, citing an example of a judge who supposedly “crossed his leg deliberately touching mine” at a marriage function.

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Can Justice Karnan be subjected to a test?

On May 1 the Supreme Court ordered the medical examination of Justice CS Karnan. The Supreme Court’s constitution bench headed by Chief Justice JS Khehar, ordered: “Press statements made by him (Justice Karnan) indicate that he may not be in a position to defend himself in his current position and we, therefore, consider it in the fitness of things that he be medically examined. We direct a board of doctors be formed and examine him and submit the report. The committee shall examine him on May 4. The DGP of West Bengal is to form the team to assist the medical board to carry out the orders of this court.” The court also ordered that all “judgments” by Justice Karnan will be treated as invalid.

When the police and medical team arrived at his residence on May 4, Justice Karnan simply refused to undergo any medical examination. What he gave in writing to the doctors was: “I declined to avail medical treatment since I am quite normal and have a stable mind. Further my strong view about the Supreme Court order (is that) it amounts to insult and harassment towards the judge (myself).” The other curious point was about “guardian consent”. He said he doesn’t have that “as my family members are not here.”

The Mental Health Care Act, 2017 S 2(1)(i) says: “Informed consent” means consent given for a specific intervention, without any force, undue influence, fraud, threat, mistake or misrepresentation, and obtained after disclosing to a person adequate information including risks and benefits of, and alternatives to, the specific intervention in a language and manner understood by the person.”

A Supreme Court verdict in May 2010 (Selvi vs State of Karnataka) was explicit that no test can be forced upon a person, not even a polygraph or narco-analysis test. “We hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to unwarranted intrusion into personal liberty.”

There is no quota route for High Court judges. They move up on merit. If Justice Karnan (a Dalit) felt slighted, it was either a genuine case of discrimination, or the seeds of a persecution complex were just germinating within. As per some published reports, however, there is no dearth of precedents of caste-related discrimination within the Tamil Nadu judiciary. However, this does not in any way point a finger towards the overall selection process.

Perhaps, the caste issue would have been tackled with some seriousness, had Justice Karnan not delivered some rather controversial judgements thereafter. In June 2013, Karnan ruled that a couple, not married but living together, will be considered married once they have pre-marital sex. He also ruled that the “husband” cannot marry someone else without getting a court decree of divorce from the “wife.” The Supreme Court threw out this judgement a year later. Judges on the apex court bench which dismissed Karnan’s ruling were Justices BS Chauhan and Jasti Chelameswar.

There has been little hiatus between Karnan’s media-attention grabbing actions. In January 2014, while a division bench of the Madras High Court was hearing a PIL on recommendations for the post of judges, Karnan barged in, complaining of unfair selection of names. Justice R K Agarwal, who was at the time Chief Justice of the court, had written to the then Chief Justice of India, P Sathasivam, saying: “Justice Karnan barged into my chambers hurling a volley of invectives… In fact, some of my brother judges are afraid of him…” The plea to transfer Karnan to another court was raised, especially with a lawyers’ boycott looming.

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Justice Karnan was still wielding the Dalit card. Though his case has become a bit too much of an embarrassment for the judiciary. The Dalit card had been wielded before as well—during the impeachment of Supreme Court Judge V Ramaswami in 1993. The impeachment was defeated in Parliament when DMK leaders claimed the judge was being victimised because he was a Dalit. The judge resigned.

In a dubious first, Justice CS Karnan stayed his own transfer to Calcutta High Court
In a dubious first, Justice CS Karnan stayed his own transfer to Calcutta High Court

Nobody had even thought of impeaching Karnan, but the frustration within the judiciary was growing. In 2015, Karnan’s persecution complex started playing up again. He accused Justice Sanjay Kishan Kaul, then Chief Justice of Madras High Court, not only of harassing him because he was a Dalit but also of assigning him “insignificant and dummy” cases. Karnan had called the Chief Justice “corrupt”.

In February, soon after the Supreme Court had transferred him to the Calcutta High Court, Justice Karnan “stayed” the order of his own transfer. It would be futile to look into the rule books for a precedent, because there is none. It was an act not anticipated by the writers of the constitution, and neither by the Supreme Court. The apex court bench of Justices JS Khehar and

R Banumathi lifted this stay quickly. Karnan had exploited the limitations of Indian law when it comes to acting against judges of the higher judiciary.

The intellectual instability point had not arisen till recently. It was Justice Karnan himself who provided this excuse to the top court. When he had to move to the Calcutta High Court, he sent a letter of apology to Justices Khehar and Banumathi, saying he had issued an “erroneous” stay order on his transfer because of his “mental frustration resulting in the loss of my mental balance.”

Perhaps realising that the Dalit card that he had used all along now has its limitations he had turned to mental frustration as a ploy. Remember that the DMK’s strength has been diluted within Tamil Nadu since the times of Justice Ramaswami. With DMK leader Karunanidhi too old to act, his son Stalin is today no more than a regional itch for the central government. And AIADMK supremo Jayaram Jayalalithaa is no more. The Dalit power base in the state has dissipated.

Justice Karnan case is one that just might be a blot and may push the government’s case vis-à-vis appointment of judges. That politicians want a bigger say in the selection of judges is not news. The judiciary is still at loggerheads over the MoP and Karnan has possibly only added to its woes.

The May 1 interactions between the Attorney General, the Chief Justice and senior advocate Venugopal presents a very telling picture—a picture in which Justice Karnan is in the background of a huge canvas. Whether he is made an example out of (or not) is being keenly watched by the government as well as the legal fraternity.

Possibly Venugopal’s advice of letting things be till Karnan retires in June was a wise one. Or maybe the top rung of the judiciary wants to prove its supremacy in all matters judicial. If and when Justice Karnan pays the price of his transgressions, it would mean more than removing the proverbial fly from the ointment.

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