Is the Supreme Court being just and fair?

The Supreme Court has the power to judge without precedent! But the unprecedented action of ordering the arrest of a High Court judge raises questions of jurisdiction and propriety

Photo by Sonu Mehta/Hindustan Times via Getty Images
Photo by Sonu Mehta/Hindustan Times via Getty Images

Indira Jaising

It was Chief Justice KG Balakrishnan who recommended the appointment of Justice CS Karnan as a judge of the High Court of Madras. Whatever be the merits and demerits of that appointment, ironically it is the former Chief Justice of India who is now accused of having assets disproportionate to his known source of income in a petition pending in the Supreme Court of India. We all know that in the now famous controversy over the purported Kalikho Pul “diary” which is said to be a “dying declaration”, Senior Advocate, Dushyant Dave on behalf of Pul’s wife complained that her letter to the current Chief Justice of India seeking his permission for the registration of an FIR on the basis of the allegations made in the suicide note, was not placed before a Supreme Court bench of seven judges as Justice Karnan’s letter was in a suo moto contempt proceeding. It is now history that Pul’s wife chose to withdraw her petition rather than take the risk of a dismissal.

These developments do no credit to the Supreme Court of India, since different procedures are being used for diffident judges. Sometimes a PIL, which is entertained, sometimes not, sometimes a Criminal writ and at other times inaction.

Let us look at the Justice Karnan issue a little more closely. Some say it is an attempt to close the stable after the horse has bolted. “We know that he was corrupt even before his appointment”, he is “Scheduled Caste anyway”, is what people in Chennai will tell you. This case has brought to the forefront the faultlines of the Indian judiciary, the absence of SC/ST judges in the judiciary, the invisibility of women judges and the absence of any procedures to deal with misconduct in the judiciary. The deferential procedures being adopted for different judges gives people like Justice Karnan an opportunity to argue that he is being targeted for being SC, which is far form the truth. The prevailing stigma attached to Scheduled Caste judges makes it possible for him to argue the unarguable. It is a known fact that a Brahmin judge from the Allahabad High Court when he occupied the court had a “shudhikaran” done before he did so because an SC judge had occupied that court before him! The Court took no action, sending a message that what he did was fine.

Back to Justice Karnan, is the procedure adopted by the Supreme Court just, fair and constitutional? Justice KG Balakrishnan, former Chief Justice of India while examining the misconduct of Justice Soumitra Sen, judge of the Calcutta High Court, wrote a letter dated August 4 2008 to the then Prime Minister calling upon to take action in the following words:

“I write to recommend that the proceedings contemplated by Article 217(1) and Article 124(4) for the Constitution be initiated for removal of Justice Soumitra Sen, Judge, Calcutta High Court”.

Thereafter 57 MPs signed the Motion for Removal of the judge which as admitted in the Rajya Sabha. The Committee under the Judges Inquiry Act, 1968 was appointed and after the inquiry commenced, the judge resigned. This was one way of dealing with the situation.

The question whether the Supreme Court has the power to exercise jurisdiction of contempt of court over a sitting judge of a High Court has never been decided by the Supreme Court itself. Judges of the Supreme Court and of the High Court have co-equal Constitutional Status and the Supreme Court has no administrative functions to perform in relation to the High Court Judges. The Supreme Court on February 8 2017 said:

“Issue notice to Shri Justice C.S.Karnan, returnable on 13.02.2017…
Shri Justice C.S.Karnan, shall forthwith refrain from handling any judicial or administrative work, as may have been assigned to him, in furtherance of the office held by him. He is also directed to return, all judicial and administrative files in his possession, to the Registrar General of the High Court immediately”.

Now let us look at the impact of issuing notice for contempt of court against a sitting judge of the High Court. Does this make High Court judges subordinate to the Supreme Court in disciplinary matters? Indeed it does, for what is alleged against Justice Karnan is an act of misconduct, sending a letter to the President of India alleging corruption by other sitting judges and calling for an investigation. If every Judge of the High Court who commits an act of misconduct is to be hauled up for contempt, independence of the judiciary and of High Court judges would be destroyed. High Courts have never been considered subordinate to the Supreme Court even though their judicial orders can be set aside by the Supreme Court.

And when it comes to issuing a bailable warrant, why was it necessary even assuming the Court had contempt powers, why an arrest, taking him into custody, necessary? Is it suggested that a constitutional functionary will flee the country? So what purpose would be served by issuing a warrant of arrest? Perhaps a notice for contempt duly served as was done was sufficient to serve the purpose. Yet the Supreme Court on March 10 2017 on the non-appearance of Justice Karnan said that:

“Bailable warrants, in the sum of Rs.10,000/- (Rupees ten thousand), in the nature of a personal bond, to the satisfaction of the arresting officer, be issued, to ensure the presence of Shri Justice C.S.Karnan, in this Court, on 31.03.2017, at 10.30 A.M.”

True the judge did not appear despite notice but the court could have proceeded ex parte. His personal attendance was hardly necessary. In law, once a bailable warrant is issued and executed, the Judge is in the custody of the court, even though on bail.

So what is the way forward in a situation where a judge enters the court of another sitting judge and takes action against him, directs the police to register an FIR against the seven Supreme Court judges who issued notice to him as he is reported to have done, writes letters to the President of India alleging contempt against his brother judges? Perhaps the Supreme Court could have written to the Speaker of the Lok Sabha or the Chair of the Rajya Sabha suggesting action under Article 217 (1) read with Article 124(4) of the Constitution. A letter to the Prime Minster may perhaps have the danger of politicising the process, hence the suggestion that the communication by the Chief Justice of India communicate the facts constituting misconduct to the relevant constitutional authorities who could initiate a motion for his removal on the basis of the alleged misconduct if felt necessary. In the alternative, the Chief Justice of the High Court could have been approached for permission to launch a criminal prosecution against Justice Karnan as decided in the case of K. Veeraswami v. Union Of India & Ors. The third option of contempt against a sitting judge did not exist until the notice was issued in this case, unprecedented to say the least, but then the Supreme Court has the power to decide without precedent! Justice Karnan should perhaps get competent legal advice and argue the scope of powers of the Supreme Court to issue notice for contempt against him, instead of evading process or playing the victim card.

Meanwhile with allegations and counter allegations of corruption by sitting judges against other judges, with “dying declarations” by deceased politicians who were litigants in court against judges who heard their cases , with PILs for investigations against former Chief Justices, with PILs by practicing lawyers supporting judges, we are left with a dark, dark cloud hanging over the judiciary. No one seems to be interested in getting to the bottom of the allegations, neither the Government which could come clean with an investigation into the suicide of a former Chief Minister who switched political parties, nor the judiciary. Only the common woman is left in amazement at what is going on in the temple of justice. Only the sunshine of transparency will lift the cloud. Only due process of law will stop the Justice Karnans of the world form from claiming they are being victimised for being Scheduled Caste. Only a procedure established by law for entertaining complaints against judges, without having to invoke the political process of removal, will satisfy the common litigant that all is well with the Judiciary. In the final analysis, who will judge the judges?

Indira Jaising is a Senior Supreme Court advocate and former Additional Solicitor General of India. She tweets at @IJaising

This is an opinion piece and the views expressed above are the author’s own.

This article was updated at 11.45 pm on March 10.

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Published: 10 Mar 2017, 7:48 PM