The court has also overstepped its authority by ordering a gag on media coverage of Karnan’s statements without giving the media a chance to put forward its objections.
By sentencing Justice C.S. Karnan of the Calcutta high court to six months imprisonment for the offence of contempt of court, the Supreme Court has emphasised that ‘be you ever so high, the law is above you’. While the court’s commitment to the rule of law is commendable, one wonders whether l’affaire Karnan also implied the dilution of the principle of the independence of the judiciary – by the judiciary itself.
There can be no doubt that the actions of Justice Karnan were contemptuous. Having initiated contempt proceedings against him by constituting a seven-judge bench, the Supreme Court soon ran out of options, and had to award him the maximum punishment prescribed under the Contempt of Courts Act. “His actions constitute contempt of this court, and of the judiciary of the gravest nature”, the Supreme Court’s order, released on Tuesday, after the contempt proceedings, read.
The court asked the director general of police, West Bengal, to execute the sentence forthwith, either himself, or through a team constituted by him. Although the court has said its detailed order would follow later, Justice Karnan cannot use this as a ground to delay his imprisonment.
While he can seek a review of Tuesday’s order finding him guilty of contempt, such a plea can only be considered by the same seven-judge bench – which is unlikely to assemble before the court reopens in July. Therefore, the possibility of a suspension of the sentence imposed on Justice Karnan, in view of the delay in the delivery of the detailed order, can be ruled out.
While Article 129 of the constitution gives the Supreme Court the power to punish for contempt of itself, the Contempt of Courts Act, 1971, aims to define and limit that power. That is why the court could not have been harsher on Justice Karnan, even if it wanted to, because the Act has limited the maximum punishment to simple imprisonment for six months.
It is here that the Supreme Court’s approach to Justice Karnan’s contemptuous acts is debatable. Clearly, the Supreme Court does not enjoy unfettered power to punish anyone for contempt of itself, in the manner it may like to, under Article 129.
If a citizen in the garb of exercising her right of free expression under Article 19(1), tries to scandalise the court or undermines the dignity of the court, then the court would be entitled to exercise power under Article 129, the apex court held in In Re: Arundhati Roy (2002).
But how does the Supreme Court conclude that an alleged contemner scandalised the court or undermined its dignity?
Section 13 of the Contempt of Courts Act says as follows:
“Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.”
The truth is that if Section 13 is to be strictly interpreted, the Supreme Court may have very few occasions to invoke its contempt power against anyone – whether a judge or a non-judge.
Only the detailed order of the court can throw some light on how the court satisfied the requirements of Section 13. Meanwhile, questions may be asked on whether Justice Karnan’s contemptuous actions were of such a nature that they substantially interfered with the due course of justice. In other words, was there a clear and present danger to the due course of justice, before the Supreme Court initiated contempt proceedings against Justice Karnan in February?
Looked at objectively, any prudent person may conclude that there was no such danger, because his contemptuous actions were only known to a few people, who would have been indifferent to them, considering Justice Karnan’s erratic behaviour in the past.
In any case, there was no question of Justice Karnan’s contemptuous statements causing any outrage, so as to bring down the majesty of the judiciary – until the court’s proceedings brought unnecessary publicity to them.
Ironical as it may seem, it is the contempt proceedings against Justice Karnan, which might have caused substantial interference with the due course of justice by bringing him into the limelight: The Supreme Court, which expressed its inability to constitute a larger bench to examine the right to privacy involved in the Aadhaar cases, felt the urgency to constitute a seven-judge bench suo motu to proceed against Justice Karnan.
Had the seven-judge bench not been constituted in this manner, the Supreme Court probably could have constituted a similar bench to consider the prayer for interim relief from the petitioners in the Aadhaar cases, who were aggrieved with the government’s move to make the Aadhaar number mandatory for a number of schemes, in violation of the court’s interim orders.
Violation of Article 20(2)
The punishment imposed on Justice Karnan also raises the question of violation of Article 20(2) of the constitution, which states that no person shall be prosecuted and punished for the same offence more than once.
Tuesday’s order suggests that the court first imposed the sentence of six months’ imprisonment, and as a consequence, he was directed not to perform any administrative or judicial functions.
But this is contrary to facts.
The Supreme Court has already twice punished Justice Karnan through its earlier orders. On February 8, while issuing notice to him, the court had directed that he forthwith refrain from handling any judicial or administrative work, as may have been assigned to him, in furtherance of the office held by him. On May 1, taking note of his contemptuous actions, the court restrained all courts, tribunals, commissions or authorities, from taking cognizance of any orders passed by him, after February 8.
Under the Indian scheme of things, it is the high court chief justice who can deprive a high court judge of his judicial or administrative work. The chief justice of India, as the head of the judiciary, can at best request or advise the high court chief justice to do so, considering the seriousness of allegations against the judge concerned. It is inexplicable why the CJI did not use this procedural remedy available to him to discipline Justice Karnan through the mechanism of the high court, rather than invoke contempt powers under Article 129.
Having punished Justice Karnan by depriving him of his judicial and administrative powers, the Supreme Court arguably exhausted its powers to punish him for contempt, in view of Article 20(2).
The controversial gag order on the media
Tuesday’s order concludes as follows:
“Since the incident of contempt includes public statements and publication of orders made by the contemnor, which were highlighted by the electronic and print media, we are of the view, that no further statements made by him should be published hereafter. Ordered accordingly.”
Curiously, the media gag was not preceded by the issue of notice to the electronic and print media, which rightly published Justice Karnan’s public statements and orders, because there was no prior restraint in force. If the Supreme Court assumes that the print and electronic media should not have published Justice Karnan’s contemptuous statements and orders, the right course would have been to hear them first, before issuing a prior restraint order on its own.
The gag order constitutes a serious violation of freedom of the media, which is implicit in the freedom of expression guaranteed by the constitution under Article 19(1)(a). While contempt of court is a legitimate ground for restricting this right, it cannot be done unilaterally by the court, without meeting the requirements of natural justice. The gag order amounts to punishment on the media, for the offence of contempt of court, which unlike in the case of Justice Karnan, has not been proven.
Even as Justice Karnan may explore the possibility of seeking a review of Tuesday’s order, there is a strong case for the print and electronic media to do the same with the court’s unjustified gag order.