23 July 2017 6:28 AM GMT
The judgment has been delivered in Suo Motu Contempt Petition (Civil) No. 1 of 2017 in the matter of “In Re: Hon’ble Shri Justice C.S. Karnan” as per the respectful title with the honorific in the judgment. Justice Karnan is in jail as a punishment and the ‘Civil’ in the petition does strike a bit of a discordant note. However, the deal is done and Justice Karnan stands convicted...
The judgment has been delivered in Suo Motu Contempt Petition (Civil) No. 1 of 2017 in the matter of “In Re: Hon’ble Shri Justice C.S. Karnan” as per the respectful title with the honorific in the judgment. Justice Karnan is in jail as a punishment and the ‘Civil’ in the petition does strike a bit of a discordant note. However, the deal is done and Justice Karnan stands convicted of ‘scandalising the court’ and ‘interference in the proceedings’ of the Apex Court and has been sentenced to six months imprisonment.
‘Scandalising the court’ and precision
Imprisoning a person involves the vital right to life and liberty and penal laws tend to define offences in precise terms. The definitions of theft, rape and murder lay down precise ingredients which when fulfilled constitute the offence. The phrase ‘scandalising the court’ is vague and lacks the precision which is the hall mark of penal provisions. The impersonal ‘court’ is after all comprised of the individuals adorning the bench. ‘Scandalising the court’ leaves undue space for varied interpretations as per the perceptions of the individuals constituting the bench at the time.
More than a century back Lord Morris in 1899 while delivering the judgment of the Judicial Committee in Mc Leod versus St. Aubyni observed, "Committals for contempt by scandalizing the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion, attacks or comments derogatory or scandalous to them."
Nearer home and more proximate in time, Chief Justice Gajendragadkar in 1965 while heading a seven-judge bench of the apex court in a case popularly referred to as the UP Legislature’s warrant of arrest of judges of the Allahabad High Court and Keshav Singh reference case observed: " Wise Judges never forget that that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct."
In fact, the Justice Chelameswar judgment in the Justice Karnan case notes “It must be mentioned that Great Britain from which we have adopted the present legal system abolished the offence of criminal contempt on the ground of scandalizing the court pursuant to the recommendation of the Law Commission dated 12th December, 2012.”
Perhaps it is time for us in India to follow suit and rethink about the expression ‘scandalizing the court’ and let interference in the administration of justice be the sole ingredient of criminal contempt.
The judgement penned by the Hon’ble Chief Justice of India on behalf of five judges ends with the expectation “that a meaningful debate, would lead to a wholesome understanding of the issue from all possible perspectives”. In a similar vein, the separate judgment on behalf of two judges by Justice Chelameswar with reference to deviations in conduct by judges’ not meriting impeachment observes: “Surely there must be ways of dealing with such cases. The text of the Constitution is silent on this issue. May be it is time for the nation to debate the issue”.
The sending of a sitting High Court judge to jail or the spectacle of a sitting judge running helter-skelter to avoid arrest as happened in the case of Justice Karnan can hardly add to the dignity of the judiciary. The present attempt carries the spirit of these observations forward and explores ‘possible perspectives’ of the five judge judgment and ‘ways of dealing with such cases’ of the Chelameswar judgment.
Our legal systems are based on principles of Anglo-Saxon jurisprudence which are adversarial in nature. The adversarial paradigm is not suited to each and every situation. Experience in courts offers us pointers that in the arena of matrimonial disputes and child custody adversarial axis of the legal system may at times worsen matters. Looking at the sequence of events, Justice Karnan accused the seven judges of the Supreme Court bench of committing contempt and also ‘convicted’ them of offences under the Schedule Caste/Schedule Tribe (Prevention of Atrocities) Act after the issuance of the contempt notice to him by the court. In fact, the Justice Kehar judgment notes “His demeanour was found to have become further aggressive, after this court passed orders from time to time, in this case.” The direction for a psychiatric examination does not seem to have helped and seems to have been perceived by Justice Karnan as part of the adversarial paradigm.
‘Pathological’ as ‘normal’
In contrast to certain aspects of psychiatry with mental illness as pathology, a psychoanalytical approach looks upon the ‘pathological’ as part of the spectrum of the ‘normal’. The standard cliché of neurosis as normal apart, many of us at times may feel singled out and ‘persecuted’ or fearful and ‘paranoid’ or omnipotent and grandiose wishing death to all and sundry enemies!
Intra-psychic processes like our inner feelings of hostility getting split and converted into perceptions of the ‘other’ as hostile to us; or denial of our feelings of humiliation leading to perceiving the actions of the other as slights; or suppressed feelings of guilt leading to feelings of being accused are at play in all of us. Providing a facilitating space for these feelings to surface gives us a chance to process them and in being able to better manage the feelings rather than act them out.
Judges are the same as the rest of us and there is no reason to suppose that processes of denial, splitting and projection are not at play in them. Judges are persons wielding great authority including the power of life and death in murder cases. However, any close interaction with individuals placed in the position makes it amply clear that it is job which entails great stress.
About half-a-dozen years back the Times of India in 2011 under the heading ‘Dalit judges targeted, says Justice Karnan’ quoted Justice Karnan that he complained that the brother judge sitting cross-legged next to him touched him with the shoe and said sorry while two other judges were watching and smiling. The brother judge may have touched his shoe intentionally to humiliate or it may have been accidental. Likewise the two judges may have been watching and enjoying Justice Karnan’s humiliation or it may be possible that they might be have been smiling at a joke entirely unrelated to Justice Karnan.
Balint Groups and Individual sessions
The present exploration is not to investigate the veracity of such allegations, but to offer spaces to get in touch with feelings in the nature of slights, humiliations, littleness, helplessness and conversely to also take on board feelings of grandiosity and omnipotence, and to help process them so as to lessen the impact on behaviour and action. In fact, psychoanalytic therapy equips you to face even situations of intentional humiliations without being too distressed and deal with it in a calm and balanced way.
Balint groups derive their name from Hungarian-British psychoanalyst Michael Balint who started these groups with doctors. About eight to ten doctors met at regulator intervals along with a facilitator and one or two cases were presented. The space was not for discussion about medical aspects of the case.
Balint groups for judges would provide a space not to discuss legal aspects but to explore feelings in a non-judgmental space. It would offer an opportunity to reflect on work as well as a space to articulate anxieties and frustrations. It could lead to increased self-awareness, more capacity to reflect on themselves and the usefulness of examining one’s own reactions. It could also lead to being better equipped to address the psychological aspects of issues like trauma testimony. Experiencing the creativity of a group and greater professional satisfaction could be other possible impacts.
Parents get stressed out in their quasi-judicial functions of arbitrating petty quarrels amongst children, the quantum multiplier in the stress and strain in deciding life and death matters, day in and day out, cannot be imagined. Individual counselling/psychotherapy sessions should be routinely offered to all judicial officers. At a practical level, the National Judicial Academy in conjunction and coordination with the various state judicial academies appear to be the institutions best suited to take the initiative for individual sessions as well as Balint Groups for judges.
Rakesh Shukla is an Advocate and Member, Supreme Court Bar Association,Consultant, International Psychoanalytical Association Committee of Law and Psychoanalysis Affiliate, Indian Psychoanalytical Society Counsellor, Delhi High Court Mediation and Reconciliation Centre.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]