The seven-judge bench of the Supreme Court, which was constituted to examine whether or not Justice CS Karnan was guilty of having committed contempt, has now released its detailed judgment in continuance of its earlier order dated May 9, 2017, whereby it had found Justice Karnan to be guilty of contempt of court. When the order had come, I had co-authored a piece arguing that the actions of Justice Karnan have certainly lowered the image of the judiciary before the general and therefore, the punishment for contempt of court awarded to him was inevitable.
In the detailed unanimous judgment released, the 7-judge bench, including Justice Pinaki Chandra Ghose who retired on May 27, has provided detailed sequence of events and the reasons why it found Justice Karnan guilty of contempt of court and sentenced him to six months’ imprisonment. While the main judgment has been authored by Chief Justice of India Justice JS Khehar, on behalf of himself, and the remaining six judges; Justice J. Chelameswar and Justice Ranjan Gogoi, while agreeing with the main judgment, have written their separate view.
The main judgment narrates the facts, in detail, of Justice Karnan’s conduct. The main judgment has held that:
“None of the allegations levelled by Justice Karnan were supported by any material. His allegations were malicious and defamatory, and pointedly by name, against many of the concerned Judges. He carried his insinuations to the public at large, in the first instance, by endorsing his letters carefully so as to widely circulate the contents of his communications, to the desired circles... During the course of hearing of the instant contempt petition, his ridicule of the Supreme Court remained unabated... He has also committed contempt, in the face of the Court. He is therefore liable to be punished, for his unsavoury actions and behavior.”
Justices Chelameshwar and Justice Gogoi, in their separate judgments, have held that Justice Karnan “appears to be oblivious of one of the fundamental principles of law that a complainant/informant cannot be a judge in his own complaint”.
The two judges also held that Justice Karnan’s assertion that “the only possible legal action against a Judge of a High Court is to remove him from office in accordance with the procedure of impeachment prescribed under the Constitution – whatever be his ‘conduct’ and ‘misconduct’” is “clearly is untenable in law”.
They held: “Interference with the due course of any judicial proceeding is another facet of criminal contempt… The main proceeding might or might not have ended in finding the guilt of the contemnor of scandalising the judiciary. The contemnor aborted all attempts to judicially resolve the charge of commission of contempt brought against him…
There is no doubt in our mind that such conduct on the part of the contemnor has brought disrepute to the judicial system and has the potential of shaking the confidence of the average citizen in the system. He has not shown the slightest remorse which could be a mitigating factor. Such conduct and action, if tolerated, would certainly reflect an element of weakness in the system; no such weakness can be allowed to enter the system.”
However, after reading the judgment, one can find that the main judgment author by Chief Justice JS Khehar only revolves around the facts. While the separate judgment authored by Justice Chelameshwar, on behalf of himself and Justice Gogoi, discusses the law on contempt of court, but it seems to be a very brief discussion on the legal aspect. The detailed judgment lacks substance viz-a-viz the discussion on the absence of any law or procedure to deal with such cases of indiscipline by a sitting judge of the higher judiciary.
The main judgment states the bench expects that a meaningful debate on the issue would take place leading to a wholesome understanding of the issue, from all possible perspectives. The separate view, written by Justice Chelameshwar, also observes on similar lines that:
“[T]he standards and procedure for impeachment of judges are much more rigorous for reasons obvious. There can be deviations in the conduct of the holders of the offices of constitutional courts which do not strictly call for impeachment of the individual or such impeachment is not feasible. Surely there must be other ways of dealing with such cases. The text of the Constitution is silent in this regard. May be it is time for the nation to debate this issue.”
Clearly, the main legal issue in this case has been left out for academic discussion. The Supreme Court has missed a golden opportunity to deal with an issue on which the constitutional provisions are silent.
The detailed judgment also fails to answer the following questions, which have been raised by legal experts:
The interesting part of the detailed judgment is that the apex court has accepted the flaws in the current system of appointment and conduct of judges. The separate judgment (authored by Justice Chelameshwar) clearly stated:
“This case, in our opinion, has importance extending beyond the immediate problem. This case highlights two things, (1) the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels; and (2) the need to set up appropriate legal regime to deal with situations where the conduct of a Judge of a constitutional court requires corrective measures - other than impeachment – to be taken.”
Regarding the first thing highlighted as above, the separate judgment of Justice Chelameshwar pointed out: “We are only sad to point out that apart from the embarrassment that this entire episode has caused to the Indian Judiciary, there are various other instances (mercifully which are less known to the public) of conduct of some of the members of the judiciary which certainly would cause some embarrassment to the system.” The system of appointment has been an issue of concern for everyone.
Regarding the second thing, the apex court could have taken the debate forward by referring to one of its earlier judgments in C Ravichandran Iyer vs Justice AM Bhattacharjee (1995) where it was held that:
“It seems to us that self-regulation by the judiciary is the only method which can be tried and adopted. The yawning gap between proved misbehaviour and bad conduct in consistent with the high office on the part of a non cooperating Judge/Chief Justice of a High Court could be disciplined by self-regulation through inhouse procedure. This inhouse procedure would fill in the constitutional gap and would yield salutary effect.”
To conclude, the Supreme Court lost the opportunity to produce a comprehensive judgment on this rare issue.
(Anurag Bhaskar is Law Clerk-cum-Research Assistant to Dr. Justice DY Chandrachud at the Supreme Court of India. The article has been written in the author’s individual capacity. He tweets at @anuragbhaskar_)