What say you, Karnan? | Gayathree Kalliyat

Gayathree Kalliyat

When the Supreme Court hauled up Justice Chinnaswamy Swaminathan Karnan of the Calcutta High Court for contempt of court earlier this month, it opened up a metaphorical can of constitutional worms. Can the Apex Court initiate contempt proceedings against a High Court judge? Does the Constitution allow removal of a High Court judge, short of impeachment proceedings? And more importantly, does this incident truly signify the failure of the collegium system for appointment of judges?

The framers of the Constitution placed the higher echelons of the judiciary at a superior pedestal as compared to other wings of the State, by giving them the power of judicial review. The Supreme Court aptly lays down the rationale behind this move in K. Veeraswami v. Union of India [(1991) 3 SCC 655], by noting that the Constitution views judges of High Courts and the Supreme Court as men and women of strong moral and ethical fibre who would function as the sentinels of the other wings of the State, not needing scrutiny themselves. It was not envisaged that the judiciary would require an external agency to keep stock of the actions of its members, as it may cause interference with the independence of the judiciary. Internal discipline, in fact, was expected to flow naturally from this high pedestal the judiciary occupied. Therefore, it comes as no surprise that great caution was exercised to devise a mechanism for appointments, salaries, transfers, etc. of judges.

Deviations from these designated standards of exemplary behaviour for judges were expected to be rare and to address such exceptional circumstances, Article 124(4) of the Constitution provides for the removal of Supreme Court judges by the President on the grounds of proven misbehaviour or incapacity. Article 217 of the Constitution extends this provision to High Court judges as well. As observed by the Supreme Court in the Veeraswami case, it is clear that the framers of Constitution envisaged removal from office strictly in accordance with Article 124(4) as the only legal sanction available against Supreme Court and High Court judges.

Considering the pedestal that members of the higher judiciary occupy in the Constitution, can contempt proceedings be initiated against them? The Constitution does not allude at an answer to this question. But, Section 16(1) of the Contempt of Courts Act, 1971 is pertinent in this respect. It reads: “Subject to the provisions of any law for the time being in force, a judge, magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly.”

This rather simply worded provision might give one the impression that it applies, as a general rule, to all “judges” in India, including High Court and Supreme Court judges. However, in 1985, a Full Bench of the High Court of Patna found otherwise, straying far from the literal interpretation of the provision.

In Shri Harish Chandra Mishra and Ors. v. The Hon’ble Mr. Justice S. Ali Ahmed [AIR 1986 Pat 65], the Petitioners referred to Section 14 of the Contempt of Courts Act, 1971, which enables the Supreme Court and High Courts to cause any person to be detained in custody for having committed contempt of court in the presence of judges of such court. Sub-sections (2) and (3) of Section 14, importantly, use the expression “judge or judges” to refer to judges of the Supreme Court and High Court. This being so, the petitioners claimed that the term “judge” as used in Section 16 also admits the same understanding. Noted author Shri V. G. Ramchandran in his work titled ‘Contempt of Court’ also observes that the remedy for contempt of court is not lost even if the offending Judge was a Judge of the High Court.

In this context, it is useful to mention Articles 129 and 215 of the Constitution, which provide that the Supreme Court and the High Courts shall be Courts of Record and shall have all powers of a Court of Record, including the power to punish for contempt of itself. Article 129 forms the basis of the Supreme Court’s inherent power to initiate suo moto contempt proceedings, like that in the case of Karnan, J. Durga Das Basu’s Commentary on the Indian Constitution quite succinctly lays down that the contempt jurisdiction of the Supreme Court springs not from any enactment or from the provisions of the Contempt of Courts Act, but is a necessary adjunct of all Courts of Record.

These very articles of the Constitution led the High Court of Patna to arrive at the proposition that contempt proceedings cannot be initiated against High Court and Supreme Court judges. In doing so, the court adopted a practice of English Courts to treat Courts of Record on a different footing from ordinary courts in respect of contempt proceedings because it was not expected that Judges presiding over Courts of Record would not maintain the dignity of their own court. [See Garnett v. Ferrand 108 ER 576; Fray v. Blackburn, 3 B &S 576; Anderson v. Gorrie (1895) 1 QBD 668.]

Moreover, Section 9 of the Contempt of Courts Act provides that no act, which was not contempt of court before the Act came in to force, shall be punishable as contempt of court under the Act. Section 22 of the Act also clarifies that the provisions of the Act are supplemental to existing law of contempt. Moreover, since Section 16 opens with the expression “subject to the provisions of any law for the time being in force”, it is clearly subject to the law in force before the Act was enacted. Until the Contempt of Courts Act, 1971 was enacted, no Court in India had taken the view that judges of Courts of Record can also be charged for having committed contempt of the High Court or the Supreme Court. Additionally, the Statement of the Object and Reasons of the Contempt of Court Act, 1971 also did not suggest that the scope of the Act was being enlarged to permit the initiation of contempt proceedings against judges of the Supreme Court and High Courts. In this background, the Court held that Section 16 of the Act does not cover judges of High Courts and the Supreme Court.

The Court also subscribed to the proposition that when Article 124(5) of the Constitution provides that Parliament shall regulate the procedure for investigation and proof for misbehaviour of a judge, it cannot be inferred that the Parliament also conceived parallel forums in the Supreme Court and in different High Courts for the investigation of the alleged misbehaviour of Judges while discharging their judicial functions and for their conviction, in contempt proceedings.

Justice Karnan’s recent claim that the Supreme Court’s initiation of contempt proceedings against him is “unconstitutional” may have been a result of this very decision of the Patna High Court. But, his claim is misguided nonetheless. It is easy for the Supreme Court to distinguish Justice Karnan’s case from the Harish Chandra case. The Patna High Court’s decision came in the context of the initiation of contempt proceedings by a private individual against a judge of a Court of Record. It was not a suo moto contempt proceeding. Moreover, the English judgments that the Court sought to rely on also referred to the initiation of contempt proceedings by private individuals. Moreover, these were situations where the impugned actions of the judges occurred while they were acting in their judicial capacity. However, Justice Karnan’s allegations of corruption against 20 sitting and retired judges of the Supreme Court and the Madras High Court came in his personal capacity, and therefore, any exemption that may be available to High Court and Supreme Court judges from Section 16 of the Contempt of Courts Act, 1971 will not be available to him.

At the same time, the decision in the Harish Chandra case clarifies why the Supreme Court is taking Justice Karnan’s case so seriously. Provisions of the Contempt of Courts Act, 1971 suggest that whenever contempt is committed in the presence of a judge of the Supreme Court or High Court, it is not the contempt of that particular court in which such Judge is presiding but of the Supreme Court or the High Court as a whole. As noted by the High Court of Andhra Pradesh in Advocate General, Andhra Pradesh v. Rachapudi Subba Rao [1993 Supp (I) ALT 697], any attack on the competence and integrity of a judge, whether of a superior court or a subordinate court, amounts to scandalizing the Court itself. If an apprehension is created in the public mind about the integrity, ability or fairness of the judiciary, it can lead to contempt proceedings.

If the Supreme Court does, in fact, find Justice Karnan guilty of having committed contempt of the Supreme Court and the Madras High Court, then, in line with Section 12 of the Act, he may be punished with simple imprisonment or fine or with both. But, as in the case of Justice (Retd.) Markandeya Katju, Justice Karnan may also be let off if he tenders an apology to the satisfaction of the seven-judge Bench. But, what if his allegations prove to be true? As per Section 13 of the Act, the court may consider truth as a valid defence in contempt proceedings. But, this is subject to whether the government alerts investigative agencies in the direction of Justice Karnan’s allegations, the Supreme Court stays the contempt proceedings till such agencies investigate his claims and the agencies find in his favour. In any case, the contempt proceedings against Justice Karnan are bound to be long-drawn and the Supreme Court shows no signs of lifting the stay on his suspension order before he retires in June this year.

But, the debate on the functioning of the collegium system resurfaced thanks to Justice Karnan’s claims. Reportedly, Justice P. K. Misra, one of the 3 judges of the Madras High Court who were part of the collegium that recommended Justice Karnan’s appointment, claimed that he “regrets his decision” and that he recommended the name only on Justice A. K. Ganguly’s suggestion. Former Chief Justice of India, K G Balakrishnan, who was also part of the same collegium, claimed that he made no specific inquiry about Justice Karnan and that the High Court’s recommendation was considered as it is. These revelations reveal a problem with the collegium system. While the judiciary’s constant efforts to keep the executive at an arm’s length to secure judicial independence are laudable, there must be some mechanism for holding the collegium accountable. After all, lack of such accountability if also gnawing at the public’s faith in the judiciary and not only statements made by sitting and retired judges. At the same time, Justice Karnan’s case by no means signifies the failure of the collegium system. If anything, it may encourage the judiciary to fix the flaws in its system and secure its independence better.

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