The seven-judge Supreme Court bench hearing against him will be long and difficult, punctuated by caste issues
~By Rakesh Bhatnagar
Seventeen-odd years ago, the then Chief Justice of India (CJI) AS Anand had warned that the erosion of credibility of the judiciary in public mind was the greatest threat to the independence of the judiciary which needed to guard against any “internal latent danger”.
Since then, many cases involving controversial conduct of judges of different status have been disposed of with mere expressions of lament and worry on the state of the judiciary in the country.
Now we have the case of Justice Chinnaswamy Swaminathan Karnan, which presents developments so far unknown to either constitutional experts or within the principles of judicial order. This shows another of the aberrations in the existing system of selection of judges.
Justice Karnan is facing contempt of court proceedings, and his case is being heard by a seven-judge bench of CJI JS Khehar and Justices Dipak Misra, Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur, PC Ghose and Kurian Joseph. He was directed to hand over all files relating to his judicial and administrative functions to the court’s Registrar General, and the constitution bench’s unambiguous and stern order hinted at the consequences in store for the sitting judge of the high court.
Earlier, and realising that he had hugely exceeded in his actions, Justice Karnan had tried to pacify the apex court judges by pretending that he was mentally disturbed. This ploy failed.
One must realise that the judiciary is already struggling to retain its independence from the influence of political executive; hence such behaviour from within the system can only weaken the fabric.
Justice Karnan said he had issued an “erroneous” order due to his “mental frustration resulting in the loss of his mental balance.” In a letter to Justices Khehar and Banumathi, Justice Karnan claimed he was “disturbed” due to various incidents where he was “ridiculed” by some judges, and that made him frustrated. This order was about his staying his own transfer to Calcutta High Court on February 15, 2016.
Justice Karnan gave an undertaking, which said: “Hereafter, I will still continue to foster a harmonious attitude to one and all, and will appreciate your kind reciprocation and oblige.”
Justice Karnan not only failed to show up in front of the bench on February 13, he dashed off a letter to the Registrar General of the Supreme Court, raising serious concerns about the motive behind the contempt proceedings against him. His letter, written on his official letterhead of the Calcutta High Court, said: “This said order does not conform to logic, therefore is not suitable for execution. The characteristic of this order clearly shows the upper caste judges are taking law into their hands and misusing their judicial power by operating the same against a SC/ST Judge with mala fide intention of getting rid of him. Therefore, the suo motu contempt order dated 08.02.2017 is not sustainable under law.”
He also stated that last year he had attempted to file a case against CJI Khehar under the SC/ST Act and requested that the contempt case against him be heard after the retirement of Justice Khehar. This was a clear affront. He challenged the composition of the bench on the ground that it is headed by CJI Khehar, who allegedly had a personal grudge against him.
It is no surprise that Justice Karnan invoked his caste (he is a Dalit), ignoring the fact that he had been appointed as a judge of a high court not on the basis of his caste. No quota system exists in the selection of judges to high courts or the Supreme Court. That a parliamentary committee on scheduled castes and scheduled tribes has strongly recommended reservation for SC/ST in this area is another matter.
Tricky legal questions
The seven-judge SC bench needs to find a constitutional way to deal with a HC judge
Justice CS Karnan, a sitting judge of the Calcutta High Court, became the first judge ever in India to be issued a contempt notice by the Supreme Court.
On February 8, a seven-judge bench, comprising senior-most judges of the apex court, issued the notice against Justice Karnan for writing letters addressed to the Chief Justice of India (CJI) and the Prime Minister with disparaging comments about several sitting and retired judges of the high courts and the Supreme Court of India.
The apex court’s seven-judge bench comprised CJI JS Khehar and Justices Dipak Misra, J Chelameswar, Ranjan Gogoi, Madan B Lokur, PC Ghose and Kurian Joseph.
The decision of the Chief Justice to constitute a high-powered seven-judge bench must have been taken after a lot of thought. As per Article 129 and 215 of the constitution of India, the Supreme Court and every high court shall be a court of record and shall have all the powers of such a court, including the power to punish for the contempt of itself. Article 16 of the Contempt of Courts Act, 1971, states that a judge shall also be liable for the contempt of his own court or of any other court.
In Harish Chandra vs Ali Ahmed, 1987, it has been clarified that since the expression “judge or judges” used in Article 14 of the Contempt of Courts Act, 1971, refers only to the judge, so judges of the Supreme Court and high courts are excluded in the expression ‘judge’ used in Section 16. Hence this should be interpreted to include only a judge of the subordinate court, not a judge of a high court or the Supreme Court. So it was never envisaged that a judge of a higher court would be guilty of contempt of his own court.
That is why the constitution of India says that the Supreme Court and high court judges can be removed by the President of India under Article 124 (4) of the constitution on the ground of “proved misbehavior and incapacity”. Article 217 (b) of the constitution of India provides for appointment and conditions of the office of a judge of a high court, where a Judge may be removed from his office by the president in the manner provided in Clause ( 4 ) of Article 124 for the removal of a Judge of the Supreme Court.
Article 124 of the Constitution of India talks about the removal of a judge of the Supreme Court; this clearly means that there are no such provisions that are specifically pinned down in our constitution for the removal of a high court sitting judge except as provided under Article 124.
The constitution of India is silent about any other manner except under article 124 (4) to deal with the judges of higher courts. Section 16(1) of Contempt of Court Act also does not express clearly the scope and ambit of the said act to include high court judges as well.
It appears that the Supreme Court of India has to find ways by interpreting the constitution and Contempt of Court Act, 1971, to deal with the present issue.
—By Shailendra Singh
Using the caste card
In the past also, the-then judge of the Supreme Court V Ramaswami had invoked his caste (Dalit) when proceedings for his removal or impeachment started in Parliament. DMK leaders had raised a hue and cry, saying the judge had been victimised because he was a Dalit. He couldn’t be impeached as caste politics dominated the mind of Congress. Of the 401 members present in the Lok Sabha on the day of the vote on impeachment, 196 voted for his removal and 205 members of the ruling Congress and its allies abstained.
The motion, which required no less than a two-thirds majority of the total number of members present in both houses of the Parliament and an absolute majority of its total membership, thus failed. Ramaswami later resigned.
There was also the case of Karnataka High Court Judge PD Dinakaran, who was elevated as Chief Justice of Sikkim High Court even when the litigation relating to his amassing disproportionate wealth and misuse of the office of judge was going on in the Supreme Court. He had also sought shelter of his caste (Dalit) and mustered support from certain caste-oriented political parties such as the DMK and Bahujan Samaj Party. Ahead of the motion for impeachment was moved, he resigned.
Karnan has been at loggerheads with his fellow judges since 2011 when he accused them of discriminating against him because he was Dalit. In 2015, he accused the then Chief Justice of the Madras High Court Justice SK Kaul of harassing him because he was a Dalit, and assigning him “insignificant and dummy” cases for dispensation whereas judges junior to him were given high profile matters.
Then he accused CJ Kaul of corruption. When the Supreme Court transferred him in the same month of February he assumed such powers which were hitherto unknown to the constitution and the principles of judicial governance.
In a surprise move, he stayed the order of his own transfer to the Calcutta High Court. But, the Registrar General, Madras High Court lost no time and moved the Supreme Court against such an order of stay by judge who had been transferred to another court. The Supreme Court rescued the situation from turning into complete lawlessness in the high court. A two-judge bench of Justices Khehar and R Banumathi scrapped his order and lifted the stay on his transfer.
Determined to act as he pleases, Justice Karnan still behaved like a judge of the Madras High Court and directed the Chennai police commissioner to register a case against the two judges (Khehar and Banumathi) under the SC/ST (atrocities) Act. He finally agreed to join the Calcutta High Court after a closed-door meeting with the then CJI TS Thakur. What had transpired between then CJI Thakur and Justice Karnan is still not known.
Remaining silent for a year, he once again cried foul. He raised the banner of revolt by writing letters to Prime Minister Narendra Modi.
“I have given a recent allegation that there were 20 corrupt judges in the Madras High Court and the Hon’ble Justice S Kishan Kaul is No. 1 accused…. It is observed that the 7 judges (who comprise the Constitution bench) are all out for a contempt case against me, presumably to clear the path for Justice Mr. SK Kaul’s elevation (to the Supreme Court).”
“The Suo Motu contempt order against me a Dalit judge and restraining my judicial and administrative assignment is unethical and goes against the SC/ST Atrocities Act. It is certainly a national issue and a wise decision would be to refer the issue to the House of Parliament.”
Meanwhile, the wife of Justice S Manikumar, a sitting Madras High Court judge, has approached the Supreme Court accusing Justice Karnan of “continuously harassing” her and her family and making baseless allegations against her husband. She has sought protection from the Supreme Court. She alleged that she and her family were aggrieved by the actions of Justice Karnan, including “abusive” telephone calls.
His interaction with other judges in his parent Madras High Court was also found to be so offensive that 21 of them signed a memorandum making a complaint to then Chief Justice of India, TS Thakur, seeking the transfer of Justice Karnan to another high court.
Karnan had plunged Madras HC into a major crisis in 2015 by threatening contempt of court proceedings against CJ Sanjay K Kaul, who is now a Supreme Court judge. Karnan had accused Kaul of interfering in his judicial work and sought a CBI probe into the alleged forged educational qualification of another HC judge.
It’s going to be a long legal battle before the constitution bench which will take up the case of contempt of court against Justice Karnan on March 10. Justice Karnan and judges do know that he would retire on June 12, 2017 and there won’t be adequate time to complete the hearing as certain groups who advocate for the rights of Dalits and backward classes are gearing up to intervene in the matter.