The Shaky Scales of Fairness in Contempt Cases of Justice Karnan and Prashant Bhushan

Why was Bhushan given repeated opportunities to apologise while a written apology from Justice Karnan was casually brushed aside? Why did the sentences given to both men differ so drastically? Why was civil society vocal in only one matter?

In the recent contempt case against Prashant Bhushan, the way events took shape within and outside the corridors of the Supreme Court was unprecedented. This inevitably reminds us of the contempt case against Justice C.S. Karnan, then a sitting judge of the Calcutta high court. While there were some similarities in the apex court’s approach, certain sections of the Karnan judgment went unnoticed at the time and highlight the difference in approach in the two cases can now be seen.

Let us begin with the similarities, which do the apex court no credit.

At the very initial stage of the contempt proceedings, Justice Karnan addressed a letter to the Registrar General of the Supreme Court on February 10, 2017, requesting that the proceedings begin after the retirement of the then Chief Justice of India, Justice J. S. Khehar, because Justice Karnan had levelled charges of corruption against him (para 18). However, the CJI continued to preside over the bench.

A similar refusal followed Prashant Bhushan’s request that Justice Arun Misra recuse himself from the bench hearing the contempt case.

In both cases, the natural justice principle that no one can be judge in his own cause was ignored. Section 15 of the Contempt of Courts Act, 1971 authorising suo motu contempt proceedings also weakens this principle, as in such proceedings the victim, the complainant and the adjudicator is the Supreme Court itself.

If the principle of nemo judex in sua causa was violated in both Bhushan and Justice Karnan’s cases, the latter had to put up with several other anomalies.

Justice Karnan’s apology ignored

First, in a hearing on March 31, 2017 Justice Karnan handed over a signed statement wherein he clearly stated:

I unconditionally withdraw my complaint dated 23.1.2017 against 20 Hon’ble Judges. … I unconditionally tender an apology before this Court if I committed contempt of Court. I will follow Your Lordship’s advice and guidelines in future in order to maintain the judicial system and its integrity. I will be retiring on 11.6.2017, therefore, I make a deep request to permit me to retire from the Bench with the blessings of all brother and sister Judges of the Calcutta High Court. Hence, I pray Your Lordships to restore my judicial and administrative work and thus render justice and oblige.”

Despite this, the court passed the following order dated March 31 after the hearing:

“… He was repeatedly asked, whether he affirms the contents of the letters, written by him, as are available on the record of the case. He was also asked whether he would like to withdraw the allegations. … He has not responded, in any affirmative manner, one way or the other. We would therefore proceed with the matter only after receipt of his written response. …” (para 27)

Thus, the order did not even refer to the written statement Justice Karnan had submitted. Later, in the final judgment dated May 9, the court explained that he was asked to submit a written response on March 31 because of an inconsistency in his oral and written statements made that day. However, the court’s observation does not explain the context of such reiteration.

Gratuitous reference to ‘mental state’

Second, on the date of next hearing (May 1, 2017), Justice Karnan did not appear in person. That day, the court ordered medical examination to test his mental fitness on the following ground:

The tenor of the press briefings, as also, the purported judicial orders passed by Shri Justice C.S. Karnan, prima facie suggest, that he may not be in a fit medical condition, to defend himself, in the present proceedings.”

The medical report was to be submitted “on or before May 8”.

Also read: The Only Institution Capable of Stopping the Death of Democracy Is Aiding it

However, in the final judgment dated May 9, the bench stated that on May 1, the medical examination was ordered because of the inconsistency in his oral and written statements made during the hearing on March 31. Irrespective of the (inconsistent) justifications put forward by the court, the order of a medical test was primarily meant to undermine the credibility of Justice Karnan’s statements by creating the impression that he is not of sound mind. A day after the order, a psychiatrist wrote an article titled: “Milords, There’s a Difference Between Unsound Mind, Mental Illness and ‘Bad’ Behaviour.” Indeed.

More shocking was the following part of the order dated May 1:

Shri Justice C.S. Karnan may, if he is so advised, furnish his response to the notice issued to him on 8.2.2017, in the meantime. In case he does not choose to file a response on or before 8.5.2017, it shall be presumed, that he has nothing to say in the matter.

Notably, the deadline assigned to Justice Karnan and the medical board was the same – May 8, 2017. This raises certain glaring questions. How could the court ask a person whose mental state it had just questioned to file a reply? Why was the court prepared to rely upon such a response before satisfying itself as to his mental fitness? How could the court compel such a person to submit a reply by articulating the presumption?

On one hand, the court ordered his medical examination to ensure that he was able to defend himself, while on the other, the court sought a reply from him in his defence before satisfying itself as to his mental condition to defend himself. This raises the obvious question: Was the court even serious about his mental state?

After interacting with Justice Karnan, the team of doctors was satisfied with his sound mental state and, therefore, reported that medical examination was not necessary (para 28).

The role of ‘evidence’

Third, the court recorded in its final judgment that: “None of the allegations levelled by Justice Karnan were supported by any material.”

At the outset, this observation has nothing to do with contempt proceedings because they do not look for justification of the statements. On the other hand, Justice Karnan repeatedly stated in his letters reproduced in the judgment that he has furnished sufficient proof (para 17) or that material evidence was available in the Registry of the Madras high court (paras 8, 11, 24). Furthermore, the issue of inadequate representation of backward classes and minorities in the higher judiciary, as he raised, is obvious.

No one rupee fine but sentenced to maximum penalty

Fourth, at the conclusion of the proceedings advocate, K.K. Venugopal informed the court that Justice Karnan would retire in the next month and, therefore, urged that the image of the institution would be tarnished in case he was punished for contempt of court whilst he is holding the high constitutional office (para 32). However, the bench sentenced him before he demitted his office, with the maximum punishment that may be awarded under the Act –  imprisonment for six months. Justice Karnan became the first judge in Indian history to retire while in jail, on June 11, 2017. The court also passed a press gag order, that is “no further statements made by him should be published hereafter” .

Why did the bench behave unfairly towards Justice Karnan? The gravity of an alleged offence does not permit such deviations.

Also read: Madras HC Declines to Initiate Contempt Proceedings Against Actor Suriya

Absence of civil society support

In respect of Prashant Bhushan’s contempt proceedings before the Supreme Court, advocate Dushyant Dave has highlighted ‘breach of procedure’ in his article, and thus that need no repetition. The court found Bhushan guilty of scandalising the court (criminal contempt) on August 14 and fixed the sentencing hearing on August 20. Within a couple of days, hundreds of people including ex-judges, lawyers and activists signed a statement and wrote on social media platforms extending him solidarity and support.

However, Justice Karnan did not find any such support. Advocate Ram Jethmalani compared his actions with that of a lunatic, about two months before the Supreme Court ordered his medical test. Bhushan, a lawyer-cum-civil rights activist, appreciated the Supreme Court’s judgment sentencing Justice Karnan. True, the alleged actions of Justice Karnan and Bhushan were very different in terms of their manner and time span, however, the concerns Justice Karnan raised were more serious, wider and fundamental, and deserve to be endorsed by civil society. Indeed, resistance has its own geography, elitism and caste. Justice Karnan comes from Tamil Nadu and belongs to a Scheduled Caste.

On August 20, Bhushan refused to apologise before the three-judge bench. Despite his firm denial, the bench unprecedentedly demonstrated some leniency. Instead of deciding on the question of sentence, it allowed him four days more to reconsider his position and tender an unconditional apology, though he did not do so. Even on the following day, the bench, instead of sentencing him, insisted on an apology but in vain. Ultimately, the court punished him with a fine of Re 1.

On the other hand, in Justice Karnan’s case the Supreme Court, on the dubious ground of ‘inconsistency’ –  refused to accept his written statement in which he tendered an unconditional apology and withdrew the allegations of corruption against fellow judges. And he was punished with the maximum sentence provided for under the Act.

In both Bhushan and Karnan cases, court brought disrepute to self

According to the apex court, the remarks and actions of Justice Karnan and Bhushan brought disrepute to the judiciary and violated the law; their trial by the bench in the aforesaid manner, however, did no less.

One of the Supreme Court’s own precedents says:

What, however, applies to a proceeding of contempt of court are the principles of natural justice and those principles apply to the contempt proceeding with greater rigour than any other proceeding. This means that the Court must follow a procedure that is fair and objective; that should cause no prejudice to the person facing the charge of contempt of court and that should allow him/her the fullest opportunity to defend himself/herself.” (para 82)

The criminal contempt cases against Justice Karnan and Prashant Bhushan offer an opportunity of introspection to the judiciary and the political executive too. The concerns raised about the judiciary not doing enough to safeguard the constitution and democracy, about corruption and inadequate representation of women, SCs, STs, OBCs and minorities in the higher judiciary, and about the unfair treatment of a Dalit judge by fellow judges are genuine. And if left unaddressed, will be harmful to the image of the judiciary.

Contempt proceedings against such whistleblowers and victims often mask the serious issues raised. In this way, the contempt law tends to obstruct resistance. At the same time, contempt law also becomes an effective tool of oppression in the hands of a political executive intending to dominate the judiciary.

Kailash Jeenger teaches at the Faculty of Law, University of Delhi.