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The Supreme Court’s Effort to Restore Its Majesty Reveals Its Increasing Sensitivity to Criticism

The ongoing contempt case against Justice C.S. Karnan is headed towards an unpleasant denouement

SC Justice Karnan

Credit: Shome Basu/PTI

New Delhi: Justice C.S. Karnan of the Calcutta high court is today at the receiving end of the Supreme Court’s effort to establish its majesty. On March 10, the Supreme Court issued a bailable warrant against him to appear before it on March 31. On Friday, the West Bengal director general of police, under the directions of the court, served the warrant on him. Justice Karnan, in turn, has sought a compensation of Rs 14 crores from the judges for “disturbing his mind and disturbing his social life”. Justice Karnan has also directed the CBI to conduct an inquiry against the seven Supreme Court judges who constituted the bench which issued the bailable warrant against him, and has appealed to the president to restore his administrative and judicial work – which were withdrawn from him by the Supreme Court. These, one would say, are unprecedented steps, but may also appear – as one senior lawyer has noted – a little insane.

Justice Karnan’s outburst against the judges of the apex court follows the uncharitable observations Markandey Katju, a retired Supreme Court judge, made in his blog against some of the sitting judges. Once he received a contempt notice, however, Justice Katju apologised and the court was graceful enough to close the matter against him.

But unlike Katju, Justice Karnan appears to be in no mood to concede defeat and tender an apology.

Eminent advocate Ram Jethmalani has written an open letter to Justice Karnan, asking him to express regrets to the court even at this belated stage, and avoid further humiliation, in the interest of the institution.

“Your behaviour is that of a lunatic, and some day that may be the only defence available to you, though with no bright chance of success,” Jethmalani has told Justice Karnan.

An apology by an alleged contemner, to avoid suffering punishment, may bring the ongoing proceedings to an end, but cannot, ipso facto, justify the contempt proceedings.

If Jethmalani’s diagnosis of Justice Karnan is correct, then it inevitably raises the question of whether the court is justified in using its contempt powers to punish someone perceived as a lunatic, or if that is an exaggeration, even someone suffering from intense mental anguish or imbalance, caused by social discrimination and professional humiliation.

On February 13, the bench said in its order: “We are not aware of the reason(s) for his non-appearance. It is, therefore, that we refrain from proceeding with the matter as of now.”

It is unclear whether the bench was any wiser about those reasons on March 10, when it issued a bailable warrant against Justice Karnan, than it was on February 13. Therefore, the bench could have restrained itself from proceeding with the matter even then. It could have appointed an amicus to interact with him and find out his reasons for not appearing before the court in response to its notices.

The bench mentioned in its March 10 order that the Supreme Court registry received a fax message dated March 8 from Justice Karnan, in which he sought a meeting with Chief Justice J.S. Khehar and the other judges of the Supreme Court to discuss certain administrative issues – which primarily seem to reflect the allegations levelled by him against certain named judges.

But the court dismissed this communication as a non-response to its notice, or the contempt petition, leaving it with no alternative but to take the next step to force the alleged contemner’s appearance before it.

The court probably felt that its majesty would be compromised if it agreed to such a meeting, for administrative reasons, with someone facing contempt proceedings on the judicial side.

If Justice Karnan continues to be intransigent and refuses to appear before the court on March 31, he could be served a non-bailable warrant, arrested and brought before the court. That would be the inexorable result of the ongoing proceedings, which can be contrasted with the recent proceedings against Justice Katju. With regard to that case, in fact, it is worth asking whether the court’s majesty was reestablished as a result of his apology and the closure of the case.

Justice Katju case

Those who were present during the contempt proceedings against Justice Katju on November 11 last year and watched the ugly spat between him and the presiding judge, Justice Ranjan Gogoi, were surprised over the denouement.

It is needless to refer to the contents of the two blog posts written by Justice Katju, found prima facie contemptuous by the Supreme Court. They have been reproduced verbatim in the very Supreme Court order of November 11, 2016 that justified the issue of notice to him, and have been reported by a number of newspapers and websites.

Ironically, while Justice Katju removed the blog posts as proof of the genuineness of his apology to the court, the reproductions of those allegedly contemptuous writings remain in cyberspace, including in the Supreme Court’s own order.

This suggests that the court’s reasons for issuing a contempt notice to Justice Katju stemmed not from the contents of his blog posts but from how the bench chose to interpret them them when they were brought to its notice.

The order, after reproducing the alleged contemptuous sentences in Justice Katju’s posts, adds:

“Reference to the author of the judgment must necessarily include the other members of the Bench. Prima facie, the statements made seem to be an attack on the Judges, and not on the judgment….”

Propriety, not jurisdiction

It is true that Justice Katju had not requested the recusal of the three judges hearing the contempt case against him, even though they were part of the bench that delivered the judgment he had criticised in his blog posts. Rather, he genuinely apologised and, therefore, the question of his seeking the recusal of the three judges from hearing the case did not arise.

But the question is not about jurisdiction, it is about propriety and the ultimate result. Have Justice Katju’s apology and the deletion of his blog posts – while their reproductions, including the Supreme Court’s November 11, 2016 order, remain in cyberspace as a reminder of the sordid contempt case – served to restore the majesty of the the Supreme Court?

The Supreme Court, in a recent judgment in Transparency International India v State of Jammu and Kashmir, had held that a general criticism of corruption in the judiciary can be grounds for taking action for contempt.

Although the Supreme Court ultimately gave relief to the petitioners by quashing the magistrate’s order of arrest to ensure their presence in the court in connection with the hearing of the contempt case against them – one the grounds that a magistrate does not have the power to arrest someone for contempt – the court upheld his decision to treat a general criticism of corruption in the judiciary as constituting contempt of the judiciary as a whole, including every court in the state, and to refer the matter to the high court.

This is a regressive interpretation of the contempt of court law. When seen with the cases of Justices Katju and Karnan, the Contempt of Courts Act may have little relevance in restoring the so-called majesty of the court, which a few judges believe has suffered erosion.