By sending Justice Karnan to jail, has the Supreme Court taken the easy way out?

In unprecedented developments, the Supreme Court on Tuesday sentenced Calcutta High Court Judge CS Karnan to six months imprisonment on charges of contempt of court.

The order is the culmination of a saga that began in 2011 in the Madras High Court, when Justice Karnan called for a press conference to accuse a fellow judge of caste discrimination. He had charged the judge of deliberately touching him with his foot during court proceeding.

Since then, Karnan has been accused of several instances of misconduct. In 2015, he barged into a courtroom when a bench was hearing a writ petition against appointment of judges. Lawyers in the Madras High Court were agitating the non-representation of certain communities in judicial appointments and Karnan intervened in open court and asked to be included as a party in the proceedings.

Later that year, he initiated suo motu proceedings against the then Madras High Court Chief Justice Sanjay Kishan Kaul. This time, Karnan charged that as he was a Dalit, the chief justice was belittling him by allotting him “dummy and insignificant” portfolios. By this time, at least 23 judges, including few from the Dalit community, took exception to his behaviour and wrote to the Chief Justice of India against Karnan. In 2016, he accused Kaul of corruption, which forced the Chief Justice of India to transfer him to the Calcutta High Court. Karnan stayed this order and then asked the Chennai police to register cases under the Prevention of Atrocities Act against the two Supreme Court judges who lifted his stay on the transfer order.

Karnan was then summoned by Chief Justice of India TS Thakur. He then accepted the transfer order and apologised for his behaviour citing “mental frustration resulting in loss of mental balance”.

But the transfer did not end the tussle between the judge and the judiciary. Last year, Karnan sent letters to the President and the Prime Minister, alleging corruption by several serving and retired judges and sought a thorough investigation. This led to the current contempt proceedings, which ended in the Supreme Court sentencing him to six months imprisonment. Significantly, despite the jail sentence, Karnan will remain a judge till his superannuation on May 23.

In passing the order, has the Supreme Court taken the easy way out in dealing with a judge accused of gross misconduct and showing absolute disregard for the process of judiciary?

In 1995, the Supreme Court, in C Ravichandran Iyer vs AM Bhattacharjee, framed guidelines on how to deal with misconduct of judges. In the case, the court admitted to a “yawning gap” that exists in the laws. Short of impeachment, there was little that could be done against an errant judge. Thus, it felt there was a necessity to establish a process that would help remedy the problem short of impeachment.

Guidelines

But did the Supreme Court follow its own recommendations in the Karnan case?

To begin with, this is what the court in Ravichandran Iyer opined about the very process of impeachment:

“The founding fathers of the Constitution advisedly adopted cumbersome process of impeachment as a mode to remove a Judge from office for only proved misbehaviour or incapacity which implies that impeachment process is not available for minor abrasive behaviour of a Judge. It reinforces that independence to the Judge is of paramount importance to sustain, strengthen and elongate rule of law. Parliament sparingly resorts to the mechanism of impeachment designed under the Constitution by political process as the extreme measure only upon a finding of proved misbehaviour or incapacity recorded by a committee constituted under Section 3 of the Act by way of address to the President in the manner laid down in Article 124 (4) and (5) of the Constitution, the Act and the Rules made thereunder.

In all common law jurisdictions, removal by way of impeachment is the accepted norm for serious acts of judicial misconduct committed by a Judge. Removal of a Judge by impeachment was designed to produce as little damage as possible to judicial independence, public confidence in the efficacy of judicial process and to maintain authority of courts for its effective operation.”

The Tuesday order sentencing Karnan to six months imprisonment establishes beyond doubt that what the High Court judge did was serious misconduct in the manner the Supreme Court defined it in Ravichandran Iyer . “We are of the unanimous opinion that Justice CS Karnan has committed contempt of court, judiciary and judicial process of the gravest nature,” Chief Justice JS Khehar mentioned in the Tuesday order.

The question here is not just about contempt but also the factors that led to such proceedings. Sending Karnan to jail cannot be seen in any other way but as an admission of how severe were his violations.

But more important in Ravichandran Iyer was what the court said should be done when the charge of misconduct by a judge surfaces. In that case, the Bar Association in Maharashtra had protested against the Chief Justice AM Bhattacharjee. There were accusations of corruption, which the petitioner wanted an investigation into. Writing the judgement, Justice K Ramaswamy laid out these guidelines to be followed when allegations are made against a judge:

“we are of the considered view that where the complaint relates to the Judge of the High Court, the Chief Justice of that High Court, after verification, and if necessary, after confidential enquiry from his independent source, should satisfy himself about the truth of the imputation made by the Bar Association through its office bearers against the Judge and consult the Chief Justice of India, where deemed necessary, by placing all the information with him. When the Chief Justice of India is seized of the matter, to avoid embarrassment to him and to allow fairness in the procedure to be adopted in furtherance thereof, the Bar should suspend all further actions to enable the Chief Justice of India to appropriately deal with the matter. This is necessary because any action he may take must not only be just but must also appear to be just to all concerned, i.e., it must not even appear to have been taken under pressure from any quarter. The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nibbing in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned. The independence of judiciary and the stream of public justice would remain pure and unsullied. The Bar Association could remain a useful arm of the judiciary and in the case of sagging reputation of the particular Judge, the Bar Association could take up the matter with the Chief Justice of the High Court and await his response for the action taken thereunder for a reasonable period.”  

Much of the deliberations that happen between judges are beyond public scrutiny and hence it is difficult to state with certainty whether this precedent set by the court was followed.

• Was an in-house proceedings conducted against Karnan? 
• If yes, was he called in to provide his side of the story?
•  If yes, what was the final outcome? 
• Did the Chief Justice of India find Karnan’s answers satisfactory?

Impeachment

Assuming that Karnan’s response was unsatisfactory and given the fact that the Supreme Court thought the judge had hurt the very image of the judiciary in a serious manner which warranted sending him to jail, why was impeachment not seen as an option?

According to K Chandru, former judge of the Madras High Court, the court cannot issue a mandamus (direction) to the Lok Sabha Speaker to initiate impeachment proceedings. However, the Ravichandran Iyer case made it possible for the Chief Justice of India to write to the Lok Sabha speaker asking for a consideration of the impeachment process.

“The thing is, if impeachment was an option, it should have been resorted to long ago. Despite complaints against Karnan from 2011, this was not considered,” he pointed out. In the process, immeasurable damage has been done to the very image of the judiciary.

What is also pertinent to note is the how complicated the process of impeachment is.

Impeachment proceedings can be initiated only if at least 100 Lok Sabha members or 50 Rajya Sabha members sign a notice to the Speaker. An inquiry committee is then formed and its findings discussed by both the Houses. The impeachment process to succeed requires the vote of two-thirds of the members present and voting.

All these would take considerable amount of time. Justice Karnan, though, is supposed to retire on May 23.

Further, in the case of Karnan, there are also political hurdles given the allegations of caste discrimination he has raised. In such a context, a quick impeachment could have been tough as parliamentarians are bound to debate this aspect as well.

Asked whether sending a judge to jail would be a substitute to impeachment, Chandru said in the current circumstance where time was limited, there was very little the Supreme Court could have done than acting on merits in the contempt case.