Thursday, May 11, 2017

The unconstitutional saga of Justice Karnan

Tuesday, 9 May 2017
The unconstitutional saga of Justice Karnan
by Seema Sapra 

The Supreme Court of India has not handled the Justice Karnan contempt case in accordance with the Constitution and the law, including the Contempt of Courts Act. 

J. Karnan had written an open letter to the Prime Minister accusing 20 sitting and retired Judges of the Supreme Court of India and the Madras High Court of corruption. This letter was addressed to the executive and not to the Supreme Court. The Supreme Court ought to have ignored this letter. The writing of such a letter cannot ipso facto amount to contempt of court because the charges made therein could (hypothetically speaking) be true. 

Instead a seven Judge Bench of the Supreme Court issued a contempt of court notice to J. Karnan for the letter but without mentioning it. Ideally J. Karnan ought to have appeared before the Supreme Court and he should have argued the case for his defense and the Supreme Court ought to have heard him. But before any of this could happen, the seven-Judge Bench of the Supreme Court passed an ex-parte order against J. Karnan without notice to him, that directed that he was barred from performing any judicial or administrative functions as a Judge of the Calcutta High Court. This order violated natural justice as it was passed without hearing J. Karnan. This order was not within the parameters of possible orders or punishments under the Contempt of Courts Act. And most importantly, this order violated the Constitution of India.

A High Court Judge like Justice Karnan is appointed under a Presidential warrant and derives his judicial powers directly from the Constitution of India and not from the Supreme Court. A High Court Judge cannot be removed from his office by the Supreme Court. He can only be impeached by Parliament. The Supreme Court cannot do indirectly that which it is prohibited by the Constitution from doing directly. The Supreme Court cannot take away judicial power from a High Court Judge who remains a Judge under a valid Presidential warrant of appointment. The Supreme Court cannot take away judicial powers which it cannot confer. Therefore, the Supreme Court’s orders directing that J. Karnan could no longer function as a Judge of the High Court were illegal and unconstitutional. Note that even in the case of contempt proceedings against lawyers, the Court cannot at the ex-parte stage debar the lawyer from legal practice. 

J. Karnan ought to have appeared before the Supreme Court and ought to have argued why his letter to the Prime Minister could not or did not amount to contempt of court. He should also have argued before the Supreme Court that its orders purporting to take away his judicial powers were unconstitutional and invalid. 

Instead J. Karnan made the mistake of refusing to appear and defend himself before the Supreme Court. Was he being misguided by some lawyers? Was he being drugged? These things happen. 

J. Karnan elected to continue to exercise his judicial powers and passed retaliatory orders against the seven Supreme Court Judges hearing the suo-moto contempt case. While under the Constitution, J. Karnan was technically correct in his position that he was still a High Court Judge who derived his judicial powers from the Constitution, yet strategically these retaliatory orders were a mistake as the executive and the police ignored J. Karnan’s orders. No authority executed his orders. He was functioning without the assistance of the High Court registry. Justice Karnan of course also violated natural justice by purporting to pass orders in his own cause. 

From a purely technical constitutional law position, all of J. Karnan’s orders passed after the Supreme Court order barring him from judicial work, could only have been challenged in appeal. Any other position would defeat the independence guaranteed to High Court Judges under the Constitution. The Supreme Court has set a dangerous precedent in this case: that it can take away judicial powers from a High Court Judge. This position adopted by the Supreme Court of India violates the Constitution which provides that a High Court Judge can only be removed from his position by the Parliament. No doubt the orders that J. Karnan continued to “pass” were problematic, but J. Karnan’s basic understanding of the constitutional position was not incorrect. 

As stated before, the mistake J. Karnan made was in refusing or failing to defend himself before the Supreme Court. This made it possible for lawyers like Fali Nariman, Ram Jethmalani and K K Venugopal to call J. Karnan mentally unbalanced and a “lunatic”. This also led to the Supreme Court being encouraged by K K Venugopal to pass an order that J. Karnan be medically examined to ascertain his mental health. The Supreme Court went on to pass a completely unjustified order directing that J. Karnan be examined by a team of doctors and that the Police provide assistance for such examination. J. Karnan refused to submit to this examination and informed the team of doctors in writing that he was mentally stable. 

J. Karnan’s final mistake was in again failing to appear before the Supreme Court on 9 May 2017. In his absence, the Supreme Court has pronounced him guilty of contempt of court and has sentenced him to imprisonment for the maximum period of six months permitted under the Contempt of Courts Act. This order, it must be pointed out, has been passed without giving J. Karnan a proper hearing. This order appears to have been passed not only for the original letter that J. Karnan wrote but also for all his subsequent actions including his subsequent retaliatory “judicial” orders and his press statements. 

The Supreme Court order dated 9 May 2017 convicting J. Karnan of contempt of court can be read at
This order states that a detailed order will follow and it does not describe which actions or statements of J. Karnan were used to find him guilty of contempt and why. There is no reasoning in this order. Is it not improper for the Supreme Court to direct a man to be arrested and imprisoned forthwith even before it pronounces a detailed and reasoned order that includes both the facts and the legal analysis necessary to convict that man? 

Having initiated the contempt case, the Supreme Court Judges ought to have compelled J. Karnan’s presence before them using non-bailable warrants if necessary. The Supreme Court should have heard J. Karman and then passed final orders. The Supreme Court should at the very least have asked J. Karnan the question – why did he write the ‘offending’ letter that was the reason for the suo-moto contempt notice issued to him. 

I fear that J. Karnan will be drugged and maybe even poisoned in prison during these six months and he will not be himself when he is released. 

All in all, the entire affair is unfortunate. The Supreme Court has violated the Constitution. Its orders have damaged judicial independence. No Judge will ever dare to expose judicial corruption fearing the same fate as J. Karnan. The wrong precedent set by the Supreme Court could in the future be used by the executive to seek similar orders against an upright but inconvenient High Court or Supreme Court Judge. Judicial orders could be used in the future to take away judicial powers from any High Court or Supreme Court Judge for any number of possible reasons. 

Parliament’s exclusive powers have been infringed upon by the Supreme Court of India. What if Parliament were to approach the Supreme Court and claim that the Supreme Court had encroached upon Parliament’s territory and trespassed into the domain reserved exclusively for Parliament. The Supreme Court’s orders in J. Karnan’s case violate the principle of separation of powers under our Constitution. 

In the 1990s, the Supreme Court of India used judicial orders to create the extra-constitutional collegium system and it assumed to itself the power to appoint Judges. Now in 2017, the Supreme Court is creating new extra-constitutional powers for itself and is assuming to itself the power to indirectly remove High Court Judges by judicial orders that restrain such judges from exercising judicial powers. Note that this power could also be available against a Supreme Court Judge. Could seven Supreme Court Judges sitting together judicially restrain another Supreme Court Judge from exercising his judicial powers? A precedent has been created which is dangerous for judicial independence. 

The first instance of a sitting High Court Judge being jailed in India is not a case where the said Judge was accused of corruption or wrong-doing. Instead it is a case, where a Judge who accused other Judges of corruption and wrong-doing is being sent to jail, without any inquiry into his complaints of corruption and wrongdoing against these other judges. The system works to protect itself. 

The Supreme Court Judges have also preemptively restrained the media from publishing any further statement issued by J. Karnan. If J. Karnan were to say tomorrow that he was being harassed, drugged or poisoned, will the media not be allowed to report this. If J, Karnan were to issue a press statement tomorrow describing his reasons for writing the letter complaining of corruption or wrongdoing by those 20 Judges and producing evidence in support of his complaints, will the media not be allowed to report this statement involving the public interest. Has J. Karnan being sentenced to civil and social exile or death? And what about the free speech rights of J. Karnan and the rights of the press to report about his future circumstances and actions and the rights of the public to know the fate and thoughts of J. Karnan. The Supreme Court has gagged the Press to protect itself from scrutiny over the J. Karnan matter. 

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