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The Supreme Court (SC) found Justice Karnan guilty of contempt of court on May 9, 2017, and sentenced him to the highest punishment for contempt under the law — 6-months imprisonment effective immediately. He was also stripped of his judicial duties with a finality — he had already been divested of his judicial and administrative duties in February this year till the contempt charges against him were heard.
There is no denying that Justice Karnan’s conduct has been unbecoming of a judge. The statements made by him, even the “order” passed by him against his seniors in the system, are anything but lawful. His conduct has certainly been deplorable — especially considering that as a High Court (HC) judge, Justice Karnan was expected to exercise immense wisdom, if not the law.
While the Court was right in holding that Karnan was guilty of contempt, its order does not reflect the clarity and consistency expected out of the highest court in the land.
How the order is inconsistent with the Constitution
The Supreme Court’s order is unclear and not truly consistent with the Constitution. A judge of the HC or the SC can only be removed by a majority vote in the Parliament, as per Article 124(4). This is where the May 9 order becomes slightly tricky — while it orders that Karnan be removed from all his judicial duties, it does not clarify whether he is removed as a judge. Surely, taking away Karnan’s powers and functions and admonishing him to prison amounts to removing him as judge for all practical purposes — which is a decision the Parliament , and not the judiciary, must take.
This is important because not only is the order now constitutionally ambiguous and confusing, but it is dangerous that the highest court in the land forewent the factoring-in of constitutional law into its decision. What the Supreme Court says has binding legal value for posterity. By hurriedly sentencing Karnan to imprisonment, the Court may have effectively removed him as judge, a power it does not have under the law.
What could the court have done differently? Could it have employed in-house correction mechanisms until Karnan retires next month, and ordered that his imprisonment begin after retirement? Could it have directed the judicial administration to refer the matter to the legislature? Could it have pre-empted the whole debacle by having taken cognisance of Karnan’s conduct much before it escalated to these heights?
Maybe.
Indiscriminate exercise of suo motu power
Under the Constitution, the SC and the HCs are given the power to take cognisance of matters even if a case of dispute is not filed before them (i.e., “ suo motu powers”). This power is granted on the trust that it will be used reasonably, sparingly and with discretion. The suo motu power does not, of course, allow the courts to surpass the rule of law (for instance, a court cannot pass an order without giving the accused a chance to defend herself merely because it exercises suo motu power).
Sliced any way, the fact of the matter is that the judiciary has its institutional failings — the Karnan saga may just be a textbook case in showing us how gaping these flaws are
Equally, the suo motu power cannot be inconsistent with constitutional law.
So, it is disconcerting to note in this case that the SC overstepped its suo motu power in ordering that Justice Karnan be imprisoned while his term as a sitting judge of the Calcutta High Court still continues. To be precise, the SC removed him from performing any judicial duties back in February 2017 , much before he was even found guilty of contempt. No reasoning for stripping Karnan of his duties is provided in these orders. It is unclear under which legal authority the court decided to divest an HC judge of his functions, especially considering that the Constitution, the foremost law governing these functions, was not referred to even once.
Separately, considering that Justice Karnan was a part of the higher judiciary, and given the fact that a saga of this kind is unprecedented, the SC should in fact have consciously set a cautious precedent — it could have recommended that in-house correction mechanisms be initiated, or that Karnan be asked to retire/resign with dignity. While Justice Karnan may have been errant in his conduct, the SC’s treatment of the matter is equally grave, as it may set a dangerous precedent .
Contempt > Constitution?
Perhaps the core legal question in the Karnan saga is: which law must be given precedence when there is a discrepancy between the Constitution and the Contempt of Courts Act? Although the answer should have been the Constitution, the Contempt of Courts Act seems to have won in this case.
An order that is made without taking into consideration constitutional provisions, which is the chief law in matters of the SC and HCs, is incomplete. That the “supremacy of the Constitution” is a facet of our basic structure is incontestable. However, in this case, the Contempt of Courts Act was given precedence without acknowledging that the order clashing with the Constitution may cause confusion.
At any point over the course of the last few years, the judicial administration could have intervened in the matter and mitigated the damage, or used in-house correction mechanisms. Inquiry could even have begun under the Judges (Inquiry) Act to remove Justice Karnan — if no other measures proved effective. Instead, what we have before us is a confusing order that does not clarify whether removing Karnan from his judicial duties amounts to a judicially-ordered “impeachment” or not.
Unwarranted Media Gag
The last paragraph in the SC order is perhaps most telling. It says “…Since the incident of contempt includes public statements and publication of orders made by the contemnor, which were highlighted by the electronic and print media, we are of the view, that no further statements made by him should be published hereafter. Ordered accordingly…”
The SC cannot impede the media from publishing such statements because the media was not the one on trial for contempt of court. Under the Constitution, the freedom of speech and expression can be curtailed only on reasonable grounds. The rationale given by the court was on anything but. Gagging the media, which was not on trial in the first place, is like shooting the messenger.
The lapse of judgment by the, well, judiciary is upsetting. Sliced any way, the fact of the matter is that the judiciary has its institutional failings — the Karnan saga may just be a textbook case in showing us how gaping these flaws are. While the anxious question on everyone’s lips is how many other Karnans have slipped through the cracks , the hope is always that the judiciary understand the great responsibility it has in setting healthy examples, and healthier functioning mechanisms.
