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Commanding respect and not demanding is the central virtue of Courts administering justice. Supreme Court of India, being the Apex Court of the land has a constitutional responsibility to set an example in cultivating such a virtue.

The method and the manner in which a sitting judge of Calcutta High Court Sri Justice C.S.Karnan has been convicted for contempt of Supreme Court and sentencedon May 9, 2017, to imprisonment for six months by a Seven Judges Bench of Supreme Court which includes Chief Justice of India JS Khehar and Hon’ble Sri. Justices Dipak Misra, J Chelameshwar, Ranjan Gogoi, Madan B Lokur, Pinaki Chandra Ghose, and Kurian Joseph, raises questions of great public importance. Examination of these questions is necessary to preserve and promote the trust, faith, and confidence of the common people in the judiciary.

No matter what happens in the case further to the sentencing on May 9, 2017, the record of the case at Supreme Court as it exists up to and including May 9, 2017, requires examination to see if there is sufficient valid material before Supreme Court to justify issue of contempt of court notice and sentencing to imprisonment, and whether the orders passed by the seven judges bench are well reasoned and whether those orders are just and fair.

Constructive criticism of judgements and orders of courts is permissible without attributing motives to the judges. This established position in law is the foundation for venturing to analyse the orders and decisions of Supreme Court of India leading to the punishment of a sitting judge of Calcutta High Court for the alleged contempt of Court.

Suo Motu Contempt Notice Not Well Founded

The seven judges bench of Supreme Court took suo motu (own motion) action. More particularly, the unprecedented case commenced with the SUO MOTU CONTEMPT PETITION (Civil) No.1 OF 2017  IN RE : HON’BLE MR JUSTICE C.S. KARNAN, and it has been launched and pursued by the seven judges bench.

For the purpose of present analysis, the orders of the seven judges bench dated February 8, 2017; February 13, 2017; March 10, 2017; March 31, 2017; 1st May,2017; and, May 09, 2017, have been downloaded from the web site of Supreme Court in Suo Motu Contempt Petition (Civil) No. 1 of 2017.

The unprecedented order dated February 8, 2017 issuing contempt of court (civil) notice to the sitting judge of high court, does not record clearly as to what act or omission of the high court judge constituted the contempt of court and how the suo motu action by the Supreme Court is warranted. There is a vague reference to the letters written by the high court judge to some quarters. More particularly, the seven judges bench in their order dated February 8, 2017, recorded,

“1. Issue notice to Shri Justice C.S.Karnan, returnable on 13.02.2017.

  1. The Registry is directed to ensure, that a copy of this order, and the letters taken note of while issuing notice, are furnished to Shri Justice C.S.Karnan, during the course of the day, through the Registrar General of the Calcutta High Court.”

The only reason for issuing show cause notice for contempt of court (civil) that can be gathered from the above reproduced para 2 of the order dated February 8, 2017, is from the words, “the letters taken note of while issuing notice,”.

What those letters are, and in what way the contents of those letters would constitute offence elements to conclude contempt of court have not been mentioned in the order dated February 8, 2017, which in the next paragraph took away the powers of the judge to do judicial and administrative work as judge of high court,

“3. Shri Justice C.S.Karnan, shall forthwith refrain from handling any judicial or administrative work, as may have been assigned to him, in furtherance of the office held by him. He is also directed to return, all judicial and administrative files in his possession, to the Registrar General of the High Court immediately.

  1. Shri Justice C.S.Karnan shall remain present in Court in person, on the next date of hearing, to show cause.”

Therefore, one is compelled to infer that some “letters” written by Justice Karnan became the basis to issue the show cause notice for civil contempt and also to divest the judge of his judicial and administrative work as judge of high court and the judge became contemnor and was required to appear before the seven judges bench of Supreme Court to reply to the show cause.

It is difficult to understand how the “letters” written by a High Court Judge could form the basis for suo motu civil contempt proceedings launched by the Supreme Court. Since there are no explicit reasons recorded in the order dated Feb 8, 2017, for issuing show cause notice, the public is left to depend on the media to know the reasons. According to some of the media reports, Justice Karnan has written letters to the Chief Justice of India, Prime Minister, Law Minister and Judges of other High Courts discussing the corruption connected to several sitting and retired judges and these letters formed the basis for suo motu contempt notice from the Supreme Court.

Justice Karnan is not the first person and the only person to talk of the corruption in the higher judiciary in India. Several years back, Shanti Bhushan, a very senior lawyer of the Supreme Court, and former Union law Minister, had filed an affidavit in the Supreme Court stating that half of the previous 16 Chief Justices of India were definitely corrupt (he named them in a sealed envelope which he gave to the Court), and he was uncertain about 2 more. The public is aware that since then more Chief Justices of India who retired had serious allegations of corruption against them.

Thus the order dated February 8, 2017 of the seven judges bench of Supreme Court compels every rational mind to reflect on the following points:

  • In the “letters taken note of while issuing notice,”,whether there are any names of judges who are sitting in the seven judges bench which issued to Sri. Justice Karnan show cause notice for contempt? If there are any such names or even one name, whether it is proper for the bench to issue show cause notice for contempt and whether it amounts to misusing the powers of Supreme Court?
  • If none of the presiding judges has been named in the “letters taken note of while issuing notice”, is it not necessary in the interest of justice for the seven judges bench to cause some form of investigation into the corruption in higher judiciary alluded to in the said letters and to request the judge of high court who wrote those letters to cooperate with the investigation, instead of targeting the judge of high court as contemnor?
  • Whether the contempt of court notice thus issued to a sitting judge of high court would give the impression to the people that the Supreme Court, for reasons not known, is pushing under the carpet the issue of corruption in the higher judiciary?

From the above furnished brief discussion, it is possible to say that the order dated February 8, 2017 of the seven judges bench issuing to a sitting judge of high court the unprecedented show cause notice for contempt of court, and also divesting the high court judge of his judicial and administrative powers is not a reasoned order. The cryptic words in the order dated February 8, 2017, “letters taken note of while issuing notice,”would show that the suo motu contempt of court notice issued to Sri. Justice Karnan is not well founded.

Opportunity To Avoid Crisis Missed

When one reads the orders of the seven judges bench carefully, one will come to know that there was in this unprecedented case an opportunity to find a solution respectable to both Sri. Justice Karnan of Calcutta High Court and the seven judges bench of Supreme Court.

The order dated March 10, 2017 of the seven judges bench shows that there was indeed an opportunity to find a solution respectable to both sides. But it was missed on account of the unwillingness of the seven judges bench to extend to Justice Karnan the respect that a high court judge deserves for explaining his position to the judges of Supreme Court without he being considered as a contemnor before them. This opportunity should have been utilized by the seven judges bench as their order dated February 8, 2017 issuing contempt notice does not record reasons, except the cryptic words “letters taken note of while issuing notice”, as explained above.

More particularly, in their order dated March 10, 2017, the seven judges bench of Supreme Court recorded that,

“2. It would be pertinent to mention, that the Registry of this Court received a fax message, from Shri Justice C.S.Karnan, dated 08.03.2017, seeking a meeting with the Chief Justice and the Hon’ble Judges of this Court, so as to discuss certain administrative issues expressed therein, which primarily seem to reflect the allegations levelled by him against certain named Judges. The above fax message, dated 08.03.2017, cannot be considered as a response of Shri Justice C.S.Karnan, either to the contempt petition, or to the notice served upon him.

  1. In view of the above, there is no other alternative but to seek the presence of Shri Justice C.S.Karnan by issuing bailable warrants. Ordered accordingly. “

Thus it is clear from the above mentioned order dated March 10, 2017 of the seven judges bench, Justice Karnan did make a sincere attempt to find a way through personal discussion to resolve the issue of contempt notice against him as well as the interim orders keeping him away from judicial and administrative work. Since it was a suo motu contempt notice, there was at that time (March 10, 2017), a definite possibility to resolve the issues, by keeping intact the dignity and majesty of Supreme Court as well as the dignity of the judge of high court. But, for reasons not known, the seven judges bench of Supreme Court were bent upon seeing Justice Karnan as a contemnor. Therefore, they proceeded to order bailable warrants against the high court judge.

The Achilles Heel of the seven judges bench of Supreme Courtgets revealed from its recorded contention in the order dated March 10, 2017, “In view of the above, there is no other alternative but to seek the presence of Shri Justice C.S.Karnan by issuing bailable warrants.”The alternative was available, but it was ignored by the Supreme Court as could be seen from the recording in the very same order dated Mar 10, 2017.

Blemish On The History of Judiciary

If upon proper investigation, it is found that the allegations of corruption in higher judiciary levelled by Sri. Justice Karnan in his letters are ill founded and are not supported by evidence, then it is necessary and justified to allow clutches of law to reach him, but not otherwise.

The order dated May 9, 2017 of the seven judges bench of Supreme Court sentencing Sri. Justice Karnan to imprisonment for six months does not record reasons, except saying “Detailed order to follow.”. More specifically the order dated May 9, 2017 records:

“2. On merits, we are of the considered view, that Sri Justice C.S. Karnan, has committed contempt of the judiciary. His actions constitute contempt of this Court, and of the judiciary of the gravest nature. Having found him guilty of committing contempt, we convict him accordingly. We are satisfied to punish him by sentencing him to imprisonment for six months. As a consequence, the contemnor shall not perform any administrative or judicial functions.

  1. Detailed order to follow.
  1. The sentence of six months imposed by this Court on Sri Justice C.S. Karnan, shall be executed forthwith, by the Director General of Police, West Bengal, or through a team constituted by him.”

People of India would expect that the Apex Court of their land would do everything to avoid the impression that the Apex Court is trying to push the alleged corruption in higher judiciary under the carpet, more so especially when the Apex Court is embarking upon punishing a sitting judge of High Court who wrote letters to some concerned quarters seeking investigation into the corruption in higher judiciary. The above reproduced order dated May 9, 2017, clearly shows that the seven judges bench of Supreme Court acted in a hurry to punish the high court judge without recording detailed reasons.

Though the order dated May 9, 2017 does not record the details of the proceedings of the Supreme Court on that day, the media, print and electronic, reported some of the things that took place in the open court on that day.

Senior advocate Sri. K.K.Venugopalcautioned the Seven Judges Bench of Supreme Court of India with his submission, jailing a sitting judge of High Court would be a blemish on the history of judiciary. The Bench is reported to have responded in the open court, by saying that the Court could not make such distinctions when punishing for contempt of court, and “it would be a blemish if they did not take action.”

With profound respects to the seven judges bench of Supreme Court it is necessary to say that the reported words of the bench, “it would be a blemish if they did not take action”, may act like a boomerang on the Supreme Court of India to hurl around and deposit a long lasting blemish on the Supreme Court. The possibility of such a boomerang would be clear if one were to examine the order dated February 8, 2017 of the bench directing suo motu contempt notice to the high court judge with their cryptic words, “letters taken note of while issuing notice,” but not taking any action with regard to the contents of those letters covering corruption in higher judiciary.

The reported words, “a blemish if they did not take action” would be more attracted to the no action taken by the seven judges bench of Supreme Court in the matter of corruption in the higher judiciary complained of by Sri. Justice Karnan as a sitting judge of High Court with his letters to some concerned quarters.

It is necessary to bear in mind that the merits of the unprecedented case in the SUO MOTU CONTEMPT PETITION (Civil) No.1 OF 2017IN RE : HON’BLE MR JUSTICE C.S. KARNANwhich was caused and entertained by the seven judges bench of Supreme Court to issue contempt notice on February 8, 2017 against a sitting Judge of Calcutta High Court should be based on the material before the Supreme Court at that point of time (February 8, 2017).

For the order passed on February 8, 2017, the seven judges bench cannot take support in, and find justification from, the ‘queer orders’ subsequently “passed” suo motu by the sitting judge of Calcutta High Court and the statements by him carried in the print and electronic media.

The media covered the reactions of  the High Court Judgeto the perceived arbitrary, unfair and unjust orders of the seven judges bench including the order dated February 8, 2017 directing show cause notice for contempt with stripping off the judicial and administrative powers, and the order dated March 10, 2013 of “bailable warrants” against the high court judge and also the perceived insulting order dated 1st May 2017 subjecting the high court judge to undergo “medical examination” with regard to his mental state.

To rely on the acts and omissions of Justice Karnan subsequent to the perceived arbitrary and unjust order dated February 8, 2017 and to decide the merits of the contempt notice issued on February 8, 2017 on the basis of those subsequent acts and omissions of Justice Karnan, would amount to putting the cart before the horse. It is impermissible to treat the effect as the cause.

The issue of corruption in the higher judiciary complained of by the sitting judge of high Justice Karnan transcends the personality of the high court judge and his “idiosyncrasies” if any.

In this connection, one may refer to the analysis and discussion in the article, “The Curious Case Of Justice C.S.Karnan: Contempt Notice versus Convoluted Condensate of Corruption in Higher Judiciary”, March 28, 2017,

(http://www.countercurrents.org/2017/03/28/the-curious-case-of-justice-c-s-karnan-contempt-notice-versus-convoluted-condensate-of-corruption-in-higher-judiciary/)

The trust, faith, and confidence of the common people in the judiciary is bound to be affected when they see that that even the letters written by a sitting judge of High Court, risking his career, complaining about the corruption in the higher judiciary could not result in any form of investigation, and instead the high court judge is punished for contempt of court.

The fact isinstead of treating the high court judge as a whistle blower, he has been punished for contempt of court and it is bound to create a scare in the mind of any other person even to think of complaining about the corruption in higher judiciary. There is no hair splitting here. It is plain truth.

When the seven judges bench sits down to write a detailed reasoned order (which is reserved as per para 3 of order dated May 9, 2017) the bench may not fail to notice traces of arbitrariness in their very first order dated February 8, 2013 with suo motu contempt (civil) petition No.1 of 2017.

According to the renowned Cyril Vernon Connolly, an English literary critic and writer, “The test of a country’s justice is not the blunders which are sometimes made but the zeal with which they are put right.

In Antulay’s case, a seven judges bench of Supreme Court reviewed and recalled the decision of  five judges bench of Supreme Court and held, inter alia, “To err is human. Courts including the apex one are no exception. To own up the mistake when judicial satisfaction is reached does not militate against its status or authority. Perhaps it would enhance both.”,

Media Banned.

Whatever may be the compulsions of the seven judges bench of Supreme Court, some of the decisions of the bench to contain the perceived waywardness of the high court judge amounted to throwing out the baby with bathtub.

One such decision is banning the media, print and electronic, from reporting the happenings in the ongoing unprecedented case of sentencing to imprisonment a sitting judge of high court. Such a ban on media can no way help in enhancing the dignity and majesty of Supreme Court. The ban on media thus ordered can be challenged with appropriate petition before Supreme Court, on several grounds which need not be spelt out here.

Seven judges bench placed restrictions on the media as could be seen from the last paragraph of their order May 9, 2017, which is reproduced below:

“5. 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.”

Several holes in the reasoning of the seven judges bench of Supreme Court in Justice Karnan’s case can be seen from the above reproduced paragraph in the order dated May 9, 2017 of the bench.

Every person, including a high court judge, who feels that his dignity has been ruined by the perceived arbitrary orders and decisions from any quarter he is entitled to spell out the injustice done to him and also to take steps as he thinks fit to counter the arbitrariness meted out to him. Whether he is justified to do so requires examination of facts. Gag orders placed on the media to prevent reporting of events as they happen will only be further evidence of arbitrariness.

There are traces of arbitrariness in the unprecedented order dated February 8, 2017 in that there are no reasons except the cryptic words, “letters taken note of while issuing notice,”, which letters admittedly seek investigation into the corruption in higher judiciary, but the seven judges bench avoided to order any form of investigation and at the same time caused suo motu contempt petition and passed the order on February 8, 2017.

With that order dated February 8, 2017 flowed two consequences for Sri. Justice Karnan, one is the show cause notice for contempt and the other is he is stripped off his judicial and administrative functions as judge of high court. It shows there is some justification for Justice Karnan to feel that his dignity has been wounded with orders of seven judges bench which are perceived by Justice Karnan to be arbitrary, unjust and unfair. The media is in no way committing any error by reporting the articulations and actions of a wounded high court judge who has some reason to feel that he is victim of arbitrary, unjust and unfair order/orders from the seven judges bench of Supreme Court.

Moreover, the order dated February 8, 2017 of the seven judges bench of Supreme Court suffers from lack of transparency. It is pertinent to mention, one of the judges in the present seven judges bench in Justice Karnan’s case, namely Sri. Justice Jasti Chelameswar in the past wrote an unprecedented letter to the then Chief Justice of India T S Thakur that he (Justice Chelameswar) won’t attend collegium meetings and was concerned over its lack of transparency. Incidentally, Sri. Justice Chelameswar was also the lone judge who last year had ruled in favour of doing away with the collegium system. The remaining judges had, through a majority judgment, struck down as unconstitutional an amendment to validate the National Judicial Appointments Commission (NJAC) Act.

Questions of law of Great Public Importance

From the facts and circumstances discussed above in Justice Karnan’s case, the following pertinent questions arise and they need examination in the interest of justice and in public interest:

(i)    Whether it is proper, fair, and just on the part of the Seven Judges Bench of Supreme Court of India to pass order dated February 8, 2017 and issue unprecedented suo motu contempt of court notice to a sitting Judge of High Court and strip the High Court Judge of his judicial and administrative powers without giving reasons in the order except the cryptic words, “letters taken note of while issuing notice,”, which letters written by the High Court Judge admittedly seek investigation into, inter alia, the corruption in higher judiciary, but the seven judges bench avoided to order any form of investigation into the alleged corruption in higher judiciary?

Whether the suo motu contempt notice ordered on February 8, 2017 is without foundation and whether it fails to meet the eye of the law?

(ii)   Having issued suo motu show cause notice to a sitting Judge of High Court and also having stripped off the judicial and administrative powers of the High Court Judge in a non-transparent way resorting to cryptic words , “letters taken note of while issuing notice,”, whether it is proper for the Seven Judges Bench of Supreme Court to decline on March 10, 2017 to afford an opportunity to the sitting Judge of High Court  to explain his stand with regard to the “letters  “  and with regard to the contents of those letters and to advance his reasons and present his requests to the Supreme Court Judges keeping his dignity as a High Court Judge and without he being required to appear as a contemnor before the Seven Judges Bench?

Whether the Seven Judges Bench acted in a hurry by issuing bailable warrants on March 10, 2017 against the High Court Judge and whether there is unusual keenness on the part of the Seven Judges Bench to see Sri. Justice Karnan as contemnor before the Judges of the Bench?

(iii)   Whether it is just and fair to order on 1st  May 2017 medical examination of the mental state of the sitting Judge of High Court while it is known to everyone that the acts and omissions of the High Court Judge and his statements to the media are merely his reactions firstly to the perceived arbitrary orders of suo motu contempt notice along with taking away his judicial and administrative powers as a High Court Judge and secondly to the perceived unjust bailable warrants against him and thirdly on account of the way in which the Seven Judges Bench declined his “repeated requests”  during his personal appearance on March 31, 2017 before the Seven Judges “that he should be permitted to discharge judicial and administrativeduties.”?

(iv)   Whether Supreme Court of India exceeded its jurisdiction and ignored and neglected the constitutional guarantees to Indian citizens, by directing the media, print and electronic, not to report the articulations and actions of a High Court Judge who has some reason to feel that he is victim of arbitrary, unjust and unfair order/orders from the Seven Judges Bench of Supreme Court?

(v)     Whether the complaints of corruption in higher judiciary can be allowed to remain uninvestigated for fear of damaging the image of judiciary, while the higher judiciary has been exercising judicial authority to cause investigation into the complaints of corruption against serving or retired persons in higher Executive, Investigating Agencies and even Armed Forces?

Closing the case of Justice Karnan who is set to retire on June 11, 2017, with or without unconditional apology from him or in any other manner, will not render the above questions redundant.

Unconditional apology from Justice Karnan could at best be for the acts and omissions of Justice Karnan after the seven judges bench of Supreme Court passed the perceived arbitrary orders of suo motu contempt notice along with taking away his judicial and administrative powers as a High Court Judge and after the perceived unjust bailable warrants against him and after the seven judges bench declined to grant his “repeated requests”  during his personal appearance on March 31, 2017 before the seven judges “that he should be permitted to discharge judicial and administrativeduties.”

Notwithstanding the way the case of Justice Karnan is brought to an end, the trust, faith, and confidence of common people in judiciary will remain wounded if the complaints of corruption in higher judiciary is to remain uninvestigated for fear of damaging the image of judiciary.

The writer is former Indian Navy captain with Ph.D. from Indian Institute of Technology, Bombay, and a practicing advocate of Supreme Court of India. His e-mail address is bksubbarao@gmail.com

Copy right of this article is owned by the author.

 

3 Comments

  1. Pingback: India: The Method And The Manner of Punishing Justice Karnan Raises Questions of Law of Great Public Importance | IAPL Monitoring Committee on Attacks on Lawyers

  2. K SHESHU BABU says:

    Many questions can be raised by the people on Supreme Court’s verdict. It has slapped punishment without giving him a chance to probe his points. Justice Karnan has raised very relevant questions regarding corruption at high places. A good independent judicial panel should probe the matter

  3. J.L.Jawahar says:

    It is gratifying to note that there are some advocates who do not hesitate to call the spade a spade. Majority are only trying to flatter the Court, afraid of contempt.

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