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Editor: Nagaraja.M.R.. Vol.13..Issue.20........20 / 05 / 2017
Editorial : SCI Judges – Illegal Actions
Justice Karnan was convicted for “Contempt of Court” , in a super fast manner. Why NOT Supreme Court Judges who have committed anti national crimes , sex crimes , etc are not punished in such a super fast manner since years ? Why Supreme Court Judges are NOT punished for “Contempt of Court , contempt of constitution of India , Contempt of Citizens “ since years ? Are these people Judges or Dictators ?
CJI Khehar Murders Justice & Truth
Who is in contempt of justice, Karnan or the court?
by Manasa Venkataraman
Justice C.S. Karnan's conduct has certainly been indecorous and worthy of attracting the charge of contempt. On the other hand, if the Supreme Court order amounts to removing him as a judge, it is a violation of the Constitution.
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?
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.
SC Wrong in sending Justice Karnan to Jail & Gagging Media
By Rajeev Dhavan
Earlier, I thought that the Supreme Court exceeded its jurisdiction in its dealing with Justice Karnan. Now, I argue that Karnan should not be sent to jail for six months and the SC should not have gagged the press from reporting anything Karnan said.
Karnan, a Dalit judge, was duly appointed a judge of the Madras High Court on March 31, 2009. He was the senior most of 13 judges appointed on that date. He came from the Bar and performed before the recommending judges. His appointment raised no eyebrows. The then Chief Justice, KG Balakrishnan, has declared amnesia over the appointment.
Test of sanity
In recent years, Karnan indulged in "conduct unbecoming", was transferred to the Calcutta High Court in 2016 where his odd behaviour continued. No one thought of impeachment proceedings, which is only the prescribed way to remove HC and SC judges. Instead, seven senior judges of the SC decided stripped him of all work, summoned him and then punished him. What an embarrassment! What an expensive farce!
The SC thought he was insane and ordered him to be medically examined. Which self-consciously “sane” person would admit to such a procedure? Karnan refused. Karnan had not pleaded insanity. The SC in fact pleaded insanity on his behalf. Had the SC already come to the conclusion that Karnan was insane?
The Court should have declared him mentally unstable to do work and reaffirmed its earlier order depriving him of work. Of course, this is assuming the Supreme Court had the power to virtually “remove” him from office which it didn’t) or punish him (which also in my view it didn’t).
The drama was too intense for the SC. Karnan had to be made an example of. Now all HC or retired SC judges remain in fear lest a Chief Justice and senior colleagues of the Supreme Court found their conduct reprehensible. Though Karnan had behaved abominably, the SC violated many procedures to make an example of him.
What does this do for the independence of high court judges? Or for judicial federalism? District judges are better treated. Karnan will retire from the judiciary from June 12 and be incarcerated till November 12. Karnan has disappeared pleading for lesser punishment.
The SC added: “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.” This is against the SC’s own law.
The Supreme Court faced a great dilemma in Gopalan’s case (1950) whether a person deprived of life and liberty by law under Article 21 conceivably forfeited his right to movement, free speech, property, right to business. The answer was convenient but not fulfiling. In the Prabhakar case (1965), Subba Rao J for five judges refused to accept a detainee lost his right to send a manuscript of his book “Anucha Antargat” (Inside the Atom) to a publisher.
In Prabha Dutt (1982) the Court ruled that a journalist had a controlled right to interview a convicted prisoner in jail. This was affirmed in the Sheela Barse (1987) and Charulata Joshi (1999) cases. In the famed Auto Shankar case (1994), Justice Jeevan Reddy made it clear that Auto Shankar convicted of six murders and on death row had every right to send his memoirs to a printer without fear of civil defamation from the police officers he criticised.
The decisions are clear: journalists can, within limits, interview pre-trial prisoners, detainees and convicts. Prisoners in jail could write works and have every right to publish them even if about their incarceration. Did not Nehru write his Glimpses of World History for Indira in prison? Recently on May 12, 2017, it was reported that Abdul Wahid Shaikh, later acquitted of the Bombay Blasts, has written of his prison experience.
There is another aspect to this. There used to be an American doctrine based on an 1879 case that a criminal “not only forfeited his liberty but all his personal rights except those which the law in its humanity accords to him. He is for the time being a slave of the state.” In Sunil Batra’s case (1978) Krishna Iyer blasted this doctrine to smithereens to prevent a death penalty prisoner being kept solitary confinement.
He went further to say humanity demanded that a “convict was a guest in custody... until the terrestrial farewell whisks him away”. In legal terms, prison may deprive a person of movement, but not his humanity or personal rights including free speech.
Apply this to Karnan’s case. Can he write his memoirs and send them to a publisher? Can he communicate with his family and ask them to inform the press of his terrible incarceration? Can a blanket order prevent the press from seeing him in jail? The Karnan order defies everything the Supreme Court has stood for in its prison and free speech jurisprudence. Was it protecting itself from Karnan’s future, even if sober or even repentant, comments?
Explanatory reasons are to follow. The punishment is too harsh. The censorship of the press unprecedented.
Judges Smother Truth about ex Arunachal CM’s Suicide : Justice Karnan to President
The Supreme Court of India refused to recall the arrest order against sitting Calcutta High Court Judge Justice Karnan, who has been found guilty of contempt of court by a seven-judge bench headed by the Chief Justice of India.
Justice Karnan, on May 12, had sought a review of his conviction and six-month jail sentence.
"We won’t allow you to stop court proceedings like this, you have been doing it repeatedly," CJI JS Khehar told Justice Karnan’s legal aide Mathews Nedumpara on Monday.
Justice Karnan became the first Indian judge to be convicted, after incidentally also being the first judge to be summoned by a court. On May 9, Justice Karnan was sentenced to six months’ imprisonment after he failed to appear before court in a contempt case against him.
“We are punishing him for contempt of Indian judiciary as well as judicial process and his act was of greatest nature of contempt,” the seven-judge bench headed by Chief Justice JS Khehar had said.
SC gives 6 month jail term to Justice Karnan for contempt, orders media gag on his statements
The West Bengal DGP was tasked with carrying out the arrest of Justice Karnan “immediately” but Justice Karnan had evaded arrest until Monday morning and has remained at large. Searches were carried out at his Kolkata residence and in parts of Chennai and Tamil Nadu-Andhra border by several senior police officials from different states. There were rumours doing the rounds that he had left the country or he would appear before the SC himself.
Meanwhile, Justice Karnan on Monday wrote a letter addressed to President Pranab Mukherjee, that was also addressed to Vice President Hamid Ansari, Prime Minister Narendra Modi, Lok Sabha Speaker Sumitra Mahajan, MPs and to leader of all political parties.
‘Committed no offence’
In his three-point letter, Justice Karnan alleges that his impeachment and imprisonment is “without authority of law” and goes on to level allegations of corruption against the Chief Justice of India JS Khehar. While arguing that he committed no offence, the HC judge goes on to observe that the Supreme Court ‘usurped’ the jurisdiction invested in the parliament” and his trial was held without charges being framed.
Justice Karnan alleges that the order by the seven-judge bench of the apex court was a “violation of the Constitution” in addition to “the usurpation of the jurisdiction of parliament”.
As per Article 217 of the Indian Constitution, a judge can be removed by an order of the President passed after both Houses of Parliament vote for their removal on grounds of proven "misbehaviour" and "incapacity". And this vote must be by a two-thirds majority, where at least 66% of the member who are present and voting must vote for their removal.
“The President of India appointed me as a judge and the President alone could have removed me and that too upon an impeachment motion which has received the ⅔rd majority of the members of Parliament. But I am not only impeached, but even being sent to the jail without any such impeachment motion against me, by a mere judicial order of a 7 judges bench,” he writes.
Reiterating that he committed no offence, Justice Karnan says that all he did was to raise the “little voice from within” against corruption in the higher judiciary. In January, he had written a letter to PM Modi accused various judges and officers of the Madras High Court of corruption in. He also added that if central agencies probe the matter, his charges could be proved too..
Justice Karnan goes on to level more charges, alleging that in the suicide note left behind by former Arunachal Pradesh CM Kalikho Pul, he accused CJI Khehar and SC judge Justice Dipak Misra of “venturing to sell justice for a huge sum running into crores” through their relatives. However, he claimed that no FIR has been registered and despite efforts to file a writ petition in the Delhi High Court, no case has been listed.
He concludes his letter writing, “I part with the unstinted faith that the two issues…my impeachment and imprisonment without authority of law and allegations of corruption against incumbent Hon'ble Chief Justice of India will be looked into, which I believe is the solemn duty of your excellencies.”
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