The Supreme Court has managed to do what Justice Karnan could not: Damage its credibility

The behaviour of Justice CS Karnan, formerly of the Madras High Court and now of the Calcutta High Court, has over the last few years been far beyond the pale. Karnan’s run-ins with his fellow judges have a long history, detailed elsewhere. He has made several, unsubstantiated accusations against judges, rudely interrupted proceedings in other courtrooms, “stayed” his own order of transfer and got into a verbal altercation with a fellow judge in open court. The nadir, at least according to the Supreme Court, was reached when he wrote to the Prime Minister levelling further unsubstantiated allegations against Supreme Court and High Court judges.

Something needed to be done, and the Supreme Court did it – setting up a seven judge bench which suo motu began contempt proceedings against Karnan in January. The Court also stripped Karnan of all his administrative and judicial responsibilities. After multiple hearings over the last few months, on Tuesday the court finally “convicted” him of contempt of court and “sentenced” him to six months’ imprisonment.

The six-page order of the Supreme Court though, for lack of a better phrase, is an unconscionable disgrace.

It has thrown all notions of judicial propriety and process to the winds in a shoddy effort to “discipline” an errant judge. It has once again shown that the court is as much an enemy of free speech as the government of the day. It will go down as one of the lowest points in the Supreme Court’s history.

A circus

The proceedings against Karnan have veered wildly off course. The whole affair has become a circus where, save for one instance, Karnan has refused to appear before the Court and continued to defy its orders in a most public manner. Not only did he defy the orders, but mocked them by passing what he called his own “orders” – just pieces of paper sent out from his residence since he had been stripped of judicial and administrative powers, and wasn’t therefore presiding over any court.

Karnan’s conduct is the kind of misbehavior that should have resulted in him being impeached. Unlike recent instances concerning PD Dinakaran and Soumitra Sen though, Members of Parliament have not thought it fit to begin proceedings. Perhaps it could be that as egregious and improper as his behaviour was, it did not slip into illegality as in the other cases.

Whatever the reasons for Parliament to refuse to act against Karnan, the Supreme Court decided to initiate contempt proceedings against him on its own. Technically, there is nothing in the law which prevents a judge from being tried for and held in contempt of court – the Contempt of Courts Act, 1971 even permits the holding of a judge in contempt for something she did judicially.

A mystery

What the Supreme Court hoped to achieve through this remains a mystery. If it was to prevent him from carrying out administrative and judicial duties, this was achieved in the first hearing itself and there was no reason to take the hearings further. If it was to gag him from making further outrageous statements, all they succeeded was in giving him a wider audience and national media coverage. Karnan’s initial allegations were not taken seriously by anyone or reported by any respectable media outlet (and rightly so) but by continuing with this ill thought out proceeding, the Supreme Court has ensured wider coverage. If it was to protect the dignity and reputation of the institution, it is safe to say that the Supreme Court has only caused much, much more damage than Karnan could ever manage.

First came the obnoxious order directing that he be examined medically against his will to assess his fitness to be held in contempt of court. The court’s direction to the Pavlov Government Hospital in Kolkata was not only against the law concerning mental health and disability, but also in violation of its own earlier judgment in Selvi v State of Karnataka. An individual’s bodily integrity cannot be interfered with, absent her consent, simply on the order of the court and directing “medical examination” of Karnan suggests that the court did not know, understand or care about the law.

Having met with defiance from Karnan even after this order, the Supreme Court then went on to cover itself with further ignominy with its latest order. The order has no discussion on the statements of Karnan’s it considers contumacious, the reasons why, arguments of counsel, and offers no hearing on the sentence to be imposed either. Recall, this is a case where the court is prosecuting for “criminal contempt” – which is for cases where a person makes statements that lower the authority of the court or prevent it from doing its work.

Dangerous precedent

It is not like the Sahara case where contempt proceedings were initiated to compel compliance of the court’s orders. Due care for procedure and law has been tossed out of the window in favour of a summary conviction that suggests the court got its jurisprudence from the Jolly LLB series of films. This is not even a case of contempt ex facie curiae, as committed by those who threw footwear at the judges, that allows for such a summary procedure The six-page order, had it been passed by a lower court, would have been summarily set aside by the Supreme Court as having been made with a pre-decided mind, passed without an effective hearing and contrary to law. It sets a dangerous precedent that tomorrow, may be wielded to silence even legitimate criticism of the court.

Having taken away Karnan’s judicial and administrative responsibilities, one wonders what compelled the court to pass this order of imprisonment. It doesn’t affect his status as a judge of the Calcutta High Court. He will retire in June, presumably with benefits and pension intact. The imprisonment seems like a punishment for some transgression, but what that is, is never quite made clear by the court in its order. There is, in short, simply no legal basis for this order, whatever might be the “reasons” the court may choose to give at a later, promised date.

To make matters worse, it imposes a media gag against reportage of Karnan’s statements. Everything wrong with this direction has been written about and explained by Gautam Bhatia. This reinforces the growing perception that far from being a defender of freedom of speech, it is now the court which is posing a threat to this fundamental right. Some media organisations have already ignored this utterly illegal and unjustified order, perhaps setting the stage for an even bigger battle the Supreme Court didn’t want or expect from this case.

There was no need for any of this. When the Supreme Court stripped Karnan of his administrative and judicial responsibilities, effectively making him sit at home, he was going to retire in about six months. The matter could have been put to an end, and his rants ignored. Instead, the Supreme Court has only hurt its credibility further. Neither has it limited the immediate damage nor has it begun to address the deeper problems that the Karnan saga highlights.