A bench of five or more judges is constituted, under Article 145 of the Constitution of India, for the purpose of deciding a case involving substantial question of law as to the interpretation of the Constitution. In Justice CS Karnan’s case, it is digressing into areas it need not move to.
It is indeed odd that seven judges should, sitting as such a bench, be ordering medical examination of the person being proceeded against. This is more so because his behaviour is not in any manner different from what was known when proceedings against him commenced.
Notwithstanding the self-evident deviance and aberrant behaviour, he was yet considered, by the very bench, as possessed of sufficient understanding and competence to be served with summons of the case, be heard in his defence and be further directed to file a reply – himself and not through a person taking responsibility for him – to the charges brought against him.
If a person can be trusted with the ability to understand the nature of the proceedings and give rational testimony, the basic test of his competence is satisfied as not to warrant his medical examination.
Medical tests have been ordered to resolve a lis a court is seized of to ensure, as was felicitously put, that “justice is not compromised to notions of delicacy”.
The application of this principle to the case at hand can be the subject matter of serious dispute and in the circumstances of this case, Justice Karnan has the right to not take the test. More significantly, the ordering of such a test suggests that the bench is having second-thoughts of the very propriety of proceedings initiated suo motu by it.
In any event, “proved incapacity” – provided it is established in the manner prescribed under Article 124 – is a ground for impeachment, not contempt, and will, in fact, negate the charge of contempt.
Proceedings will have to be kept in abeyance pending resolution of doubts about mental capacity. Inexplicably, however, the Supreme Court not only reiterates that Justice Karnan, the very person whose competence and capacity it doubts, should file a response but further records that should he “not choose” to file ,“it shall be presumed he has nothing to say”.
How can freedom of choice be conceded to one who cannot be trusted with that responsibility, and how can his failure to exercise that choice be deemed an intelligent exercise of discretion when an apprehended defective intellect is the reason for constituting the Medical Board?
The Supreme Court has, under the constitutional scheme, a special role in the administration of justice and is obligated to take steps to ensure free and fair administration of justice throughout the country. This explains the unusual step of constituting a bench of seven judges proceeding with suo motu contempt proceedings against Justice Karnan.
Curiously, the notice issued had not set out the charge against Justice Karnan and the contempt itself is described as “civil”, though the reason for the proceedings is not violation of any order the court may have passed but letters addressed to the Supreme Court (which fact is not mentioned in the order issuing notice). This discrepancy, however, does not affect the proceedings in any substantial manner as Justice Karnan, appeared aware of the reason behind the proceedings and the right to proceed in contempt inherent in a Court of Record, the Supreme Court was exercising power under Article 129 and not under the Contempt of Courts Act, 1971.
It would, however, have been appropriate if it had not made itself vulnerable to any criticism about the manner in which it was proceeding, more so, because the jurisdiction it was exercising was of contempt and that too suo motu.
Ideally, Justice Karnan should have contested the proceedings and presented whatever objections he had in law to the process – which would also have served as a precedent checking any future misuse of such a power.
His willful refusal to participate should, nevertheless, not have deflected the court from the purpose behind the institution of proceedings to make forays into areas irrelevant to the controversy.
The bench would have been better advised to immediately proceed to decide the issue whether in exercise of its powers under Article 129, notwithstanding the bar against “removal” from office except in the manner prescribed by Article 124 (4) of the Constitution the Court, could yet order that Justice Karnan “refrain from all handling judicial or administrative work” – that is remove his adjudicative capacity which alone could make him act as a judge.
A related issue would be whether judges of courts of record could be proceeded against under contempt if they interfered with the legal process (an issue which proceeded sub-silentio in Ramaswami’s case) or exercised power illegally (which distinguished Justice Karnan’s case from Prakash Chand’s case) and the limits of public interest restriction against initiation of proceedings against a Judge of a Court of Record – an issue which will always remain key in every contempt proceedings instituted against any superior court judge.
However, more than two months have elapsed and Justice Karnan will retire in a few weeks from now.
Even otherwise, the question would yet remain how any order passed would be executed. While a method to take action against judges, apart from the process of impeachment – an oppressively cumbersome process made worse by the intrigue and artifice of the political process – would be a welcome, making the method work would be the real problem.
We will eventually return to the very point from where we started – ordering the withdrawal of judicial work – and the judge remaining defiant – apart from any other punishment devised to suit the contempt – the carrying into effect of which would be fraught with rather dangerous consequences as the judiciary would be bound to take the help of the executive to make any order effective which is bound to compromise its independence.
A public spat between judges with each side ordering medical examination of the other and issuing warrants demeans the judiciary as an institution. The fact remains Justice Karnan is responsible for this situation and by choosing not to appear and contest the notice has shown he is not serious about the allegations made by him being subject to rigorous scrutiny as to show they are not fanciful and frivolous.
He is, in the circumstances, clearly liable to punishment but the fact is he is about to retire and more than two months have been spent by the Supreme Court without making any substantial progress only generating adverse publicity ridiculing the judiciary.
Moreover we need to proceed with caution thinking out the consequences of any action lest this case becomes a precedent that returns to haunt the judiciary later.
Justice Karnan already stands discredited. KK Venugopal’s sage suggestion of letting him fade into retirement ought to be seriously considered by the Supreme Court. The existence of the power in the Supreme Court has been demonstrated. It is unnecessary to exercise it in the instant case.
(The article was originally published on BloombergQuint. The author is a Senior Advocate at the Supreme Court of India who writes on constitutional and commercial law issues. The views expressed here are those of the author’s and do not necessarily represent the views of The Quint or its editorial team.)