In an unprecedented development, a seven-judge Bench of the Supreme Court has found Justice C.S. Karnan of Calcutta High Court to be guilty of contempt of court. In its order dated 9 May 2017, the Bench of the apex court held as follows:
“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.”
The said order has led to a discussion about the treatment meted out to Justice Karnan – not only among the legal experts but also among the masses, as Justice Karnan belongs to Scheduled Caste community and he has always projected his caste identity as the cause of his discrimination. However, the angry reaction from members of the Dalit community is mistaken. If we look at the conduct of Justice Karnan for the past few years, we will find that the punishment awarded to him was inevitable.
The details of the acts of Justice Karnan were widely covered by the media and a detailed account was recently been published in the Economic & Political Weekly (EPW). However, we would be dealing only some aspects of it here to highlight the nature of Justice Karnan’s judicial misconduct.
The transfer drama
When, on 12 February 2016, the Chief Justice of India (CJI) ordered his transfer from the Madras High Court to the Calcutta High Court, Justice Karnan stayed the transfer order. By doing so, he violated the principles of natural justice that “no one shall be a judge in his own cause”. He also asked the CJI to file a response on his transfer order and not interfere in his jurisdiction. Such an act by Justice Karnan amounted to gross indiscipline and judicial misbehaviour, which is one of the grounds for the impeachment of a judge under the Indian Constitution.
The registrar of the Madras High Court then went before the Supreme Court, seeking a restraining order on Justice Karnan from issuing an order on his own transfer. Thereby, on 15 February 2016, the Supreme Court, while quashing Justice Karnan’s stay order, ordered the Madras High Court to not assign any work to Justice Karnan. The apex court further ordered “a blanket stay on all orders passed by Justice Karnan after 12 February, but allowed him to contest the petition filed by the Madras High Court”. After this order by the Supreme Court, Justice Karnan met the then CJI, Justice T.S. Thakur, and formally apologized to him for his conduct. In the letter of apology, he blamed the “loss of mental balance due to mental frustrations” over the caste discrimination that he faced in the Madras High Court. He also accepted his transfer to the Calcutta High Court. A judge’s own claim of mental imbalance could be the basis for impeachment under the Indian Constitution, but this was only one instance of mental imbalance and therefore might not have merited impeachment. But the act could certainly amount to misbehaviour. However, the Supreme Court avoided strict action and then permitted him to continue his work in the Calcutta High Court.
Why a case of contempt?
According to Article 129 of the Indian Constitution, the Supreme Court has the power to punish anyone found to act in contempt of itself. So, what did Justice Karnan do to invite a notice of contempt of court? The suo-moto contempt proceedings were started against Justice Karnan when he wrote an open letter to the prime minister making scandalous corruption charges, without providing any substantial evidence, against 20 high court and Supreme Court judges. A Bench consisting of the seven senior most judges of the Supreme Court was constituted to hear the contempt case.
In State of Uttar Pradesh vs Shyam Sunder Lal (1954), it was held that: “A letter sent to the Prime Minister and not intended to be broadcast to the public or any section of the public cannot create an apprehension in the mind of public … regarding the integrity, ability or fairness of the judge”. But the letter sent by Justice Karnan to the prime minister was made public by him and thereby was capable of tarnishing the image of judges among the common public. In Shri Baradakanta Mishra vs The Registrar of Orissa High Court (1974), the Constitution Bench of the Supreme Court said that:
“Judges and Courts have diverse duties. But functionally, historically and jurisprudentially, the value which is dear to the community and the function which deserves to be cordoned off from public molestation, is judicial. Vicious criticism of personal and administrative acts of judges may indirectly mar their image and weaken the confidence of the public in the judiciary but the countervailing good, not merely of free speech but also of greater faith generated by exposure to the actinic light of bona fide, even if marginally overzealous, criticism cannot be overlooked. Justice is no cloistered virtue.”
Justice Karnan’s allegations were serious – especially considering that they had come from a sitting high court judge. However, such mere allegations, with nothing to substantiate them, bring disrepute to the judicial system and lower its image in the eyes of the general public.
In a reply to the question whether the Supreme Court had jurisdiction to issue a notice of contempt against Justice Karnan, it would be apt to refer to the judgment in Supreme Court Bar Association v. Union of India (1998), where the Constitution Bench had held that:
“The contempt of court is a special jurisdiction to be exercised sparingly and with caution, whenever an act adversely effects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely effects the Majesty of Law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law. It is an unusual type of jurisdiction combining “the jury, the judge and the hangman” and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperiled and there should be no unjustifiable interference in the administration of justice.”
How Justice Karnan failed his own case?
Despite having served repeated notices and summons to appear before the seven-judge Bench to explain the scandalous allegations against sitting and former judges, Justice Karnan did not do so. It was only when a bailable warrant was issued that he appeared before the Supreme Court. If one looks at the conversation between Justice Karnan and the CJI-led Bench, in a letter dated 25-March 2017, Justice Karnan was ready to unconditionally apologize and was even ready to withdraw his complaint against the 20 judges against whom he had made the allegations earlier. During the hearing, in which Justice Karnan did not give a convincing reply, the Supreme Court gave him time to file a written response by way of an affidavit. However, Justice Karnan neither filed a reply nor appeared before it in the next hearing.
Ideally, Justice Karnan should have contested the proceedings and presented whatever objections he had. If indeed he had material to substantiate his allegations, even prima facie, he could succeed because what he would expose was massive corruption in the higher judiciary. It is pertinent to note that the only defence that was open to Justice Karnan was justification by truth under Section 13 (b) of Contempt of Courts Act, 1971. By not choosing to appear in the court and contest the contempt against himself, he made the Court presume that the allegations were mala fide and meant to scandalize the court. Worse, he was conducting parallel proceedings against the seven judges when the Supreme Court expressly barred him from doing any judicial or administrative work. Even otherwise, those proceedings violated a fundamental rule that no one could be a judge in his own cause. What followed thereafter was a series of bizarre orders such as the demand for a compensation of 14 crores from the seven judges, a non-bailable warrant against them, a notice to the Airport Authority of India to about a travel ban on these judges, etc. In his last order dated 8 May 2017, he directed the imprisonment of eight judges of the Supreme Court, including CJI. He ordered five-year rigorous imprisonment and a fine of rupees 1 lakh each against the judges as the “punishment for offences punishable under the Scheduled Caste/Scheduled Tribe Atrocities Act 1989 and the Amended Act of 2015”. This last order “virtually sealed the fate of Justice Karnan”.
These bizarre orders that Justice Karnan passed, particularly from February 2017 onwards, definitely constitute contempt of court as they not only show gross indiscipline by a sitting High Court judge but also lower the image of the judiciary before the general public.
Did the Supreme Court act in haste?
While the acts of Justice Karnan were in contempt of court, was the court right in imposing the sentence of imprisonment for six months, that too without hearing the contemnor? This is an area where the order of the Supreme Court arguably suffers from procedural illegalities.
Firstly, no proper charges were framed against Justice Karnan. Secondly, after holding him guilty of contempt, the court ought to have heard Justice Karnan on the question of the quantum of sentence. Interestingly, fugitive businessman Vijay Mallya, who was also found guilty of contempt by a Bench of the Supreme Court on the same day it found Justice Karnan guilty, was offered a hearing on the proposed punishment. It may be said that, unlike Mallya, who is currently facing extradition proceedings in the UK, Justice Karnan always had the opportunity to defend him in the proceedings personally and could choose not to appear. His defiant attitude to the entire proceedings and the series of bizarre orders in total breach of judicial propriety and discipline may have prompted to the Court to direct that his sentence be executed immediately.
Was the sentence excessive?
In Shri Baradakanta Mishra vs The Registrar of Orissa High Court (1974), the Orissa High Court sentenced a senior judicial officer to prison for contempt of court. However, the Supreme Court held that “in the sombre evening of an official career, a punishment short of imprisonment would have met the ends of justice and inspired in the public mind confidence in the justice administration by showing that even delinquent judges will be punished if they play with or pervert the due course of justice, as the contemnor here has done”. While stating that “[a] heavy hand is wasted severity where a lighter sentence may serve as well”, the apex court substituted the imprisonment with a fine of Rs1000 and a three-month imprisonment only if he defaulted on the payment of the fine.
In Supreme Court Bar Association vs Union of India (1998), the only question before the Constitution Bench of the Supreme Court was whether the punishment for contempt of court by an advocate could include punishment to debar the concerned advocate from practice by suspending his licence for a specified period, in exercise of its powers under Article 129 read with Article 142 of the Indian Constitution. The Constitution Bench held that suspension of advocate from practice and his removal from the State’s roll of advocates are punishments specifically provided for in Advocates Act, 1961 that can only be imposed by the competent statutory body after the charge is established against the advocate in the manner prescribed by Act and rules framed in it. It is, therefore, held that it was not permissible for the apex court to take over the role of statutory bodies and organs of the State and perform their functions.
In these two cases of contempt of court, the Supreme Court substituted a punishment of imprisonment of a senior judicial officer with a fine in the first case and left it to the competent statutory authority to deal with the suspension of an advocate from practice in the second case. However, those cases are clearly distinguishable from the present case. Here is a case of a sitting High Court judge making scurrilous allegations against other judges and passing a series of orders in breach of judicial discipline and thereby lowering the “majesty and dignity” of the judicial process. The actions of Justice Karnan have certainly lowered the image of the judiciary before the general public. In such an extraordinary situation, the court cannot be faulted for awarding the maximum sentence of six months’ imprisonment.
Anything else the court could do?
Justice Karnan’s acts were the first (and hopefully the last!!) instance of contempt of court by a sitting High Court judge. Perhaps, the only reason why the Supreme Court initiated contempt proceedings against Justice Karnan is the absence of any law or procedure to deal with such cases of indiscipline by a sitting judge of the higher judiciary. It may not be entirely correct to say that there is no mechanism to discipline the errant judges. The apex court did observe in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) that self-regulation by the judiciary is the only solution. The last lines of the judgment are worth reproducing:
“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.”
However, Justice Karnan’s case may fall within the act of proved misbehaviour, and impeachment may have been the only option, which is cumbersome and lies with the Parliament. In such circumstances, rather than an in-house inquiry which may not yield the desired result of restoring the lost confidence, the court exercised its powers to hold him guilty of contempt. It may not have been the best option, but it was certainly not illegal.
Though one may debate the harshness of the order of the Supreme Court of sentencing Justice Karnan to imprisonment of six months and taking away his judgeship, there can be no sympathy for Justice Karnan for his misconduct. A sitting High Court judge, who professionally weighs his thoughts and words, can have no justification for the immoderate abuse and conduct he has resorted to. If not for contempt, Justice Karnan’s was a fit case for impeachment under the Indian Constitution. But that course was not opted for, maybe because of the fact that Justice Karnan is retiring in June and it would be difficult to complete the cumbersome process before his retirement. Some, for instance, senior advocate K.K. Venugopal, said it would be better to leave Karnan alone. But the Supreme Court thought otherwise and brought to an end an unpleasant chapter in our judicial history. One can only hope that the Karnan saga is a one-off incident and there won’t be any such cases in the future.
 See Articles 124 (4) & 218 of the Indian Constitution.
 AIR 1954 All 308
 (1974) 1 SCC 374
 AIR 1998 SC 1895
 (1974) 1 SCC 374
 AIR 1998 SC 1895
 (1995) 5 SCC 457
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