It is a curious case of Justice Karnan because he has been very inconsistent in his approach. He is neither strictly legal nor political. He is choosing his course of actions as per his conveneince. When required he would tender unconditional apology and even claim himself to be medically unfit but soon thereafter would make even more egregious comments. This case is also curious because he has been successful in gaining an aura of a crusader through his impertinent statements and remarks. And has now raised a serious question: who should judge the judges?
Nevertheless, his conduct doesn’t decide law. Many legal luminaries have raised many questions about the validity of contempt proceedings against Justice Karnan. Their main objection is with respect to maintainability of proceedings against a sitting judge of a High Court, who is himself a constitutional authority and, when acting as a single bench, is also a court of record. I think the objection with respect to maintainability is misconceived. No law says a court of record can’t punish another court of record for its contempt. Though it is a different matter if all high courts started punishing each other and also the Supreme Court once in a while, the judicial activists will have to shut their shops for good — I am rather surprised Justice Karnan didn’t commit the seven judges for contempt of court; it seems he has a soft corner for judicial activists.
Jokes apart, the above status of high courts via-a-vis the Supreme Court has indeed led to a peculiar situation in the above case. Justice Karnan is indeed a victim albeit not of caste discrimination as he claims himself to be. He is a victim of his valid authority, which unfortunately doesn’t make him potent enough to get his orders executed. This is in fact the tragedy of judiciary. They have to rely on the executive to get their orders executed. So, obviously the judiciary is always circumspect while passing orders against the executive. My simple question is if instead of Justice Karnan a Yogi Adityanath or, for that matter, even an Arvind Kejriwal had made a complaint against judges to the prime minister or the president, would have the Supreme Court instituted contempt action and send them to jail for six month in this manner? I don’t think so.
But the story doesn’t end here. In a cat fight, a monkey is inevitable. Is there a possibility of that monkey being the president of India? I think this can be raised as a question of law. Contempt law is undoubtedly an autocratic law. It is an exception to the rule that one shall not be a judge in his own cause. It doesn’t provide for truth as a defence. It doesn’t even allow for other defences like bonafide comment, complaint to a superior authority, etc. The exception under Sec 6 of the Contempt of Courts Act available in the case of subordinate courts is also not available in the case of high courts and the Supreme Court. What is surprising is how this law has existed in the rule-books for ages. It makes sense to get the orders of the court executed, but what sense does it make to punish a person for making a complaint against a judge. Judges are also mortals and susceptible to corruption like other beings. In fact, pretty often they are too cynical to be fit to pass any judicial order, especially those who work in district courts and rise up in ranks to join higher judiciary. At the same time, the bar exercises huge control over the bench. Majority of judges won’t mind appeasing the influential members of the bar, especially if their own careers are at stake.
Let us see the complaint filed by Justice Karnan in this context. He has raised concerns about the corruption of his fellow judges in the Madras High Court. Of course, his complaint was influenced by his personal grudge. One can also say the complaint was motivated. But does that demand for a six month jail term. One shouldn’t forget a judge is in the best position to blow whistle against the corruption in judiciary. It is rather unfortunate that Justice Karnan has made a complete fool of himself by making irresponsible statements and undertaking stupid actions. He had no business making a complaint to the prime minister. If at all the complaint should have been made to the president of India, who is the constitutional head. Indeed, there is independence of judiciary and the executive has no business interfering in judicial matters. But, what stops the executive from using the complaint against a high court judge as a relevant material while deciding appointments to the Supreme Court. It can always send a recommendation back if, on the basis of an enquiry carried out by it, the judge under consideration did show hints of corruption. The issue is that at present there is just no mechanism to make a complaint against a high court judge. Sometimes making of complaint against a judge may give closure to a litigant. Why should judges be so thin-skinned?
The question of law I talked about above is premised on the trump of freedom of expression over everything else. This freedom of expression not only gives the right to speak the truth but also lies till the time they are within the bounds of law of defamation. Of course, the lies would carry their own consequences, which ordinarily would be naming and shaming. For example, if instead of prosecuting Justice Karnan for contempt, the PMO had carried out an enquiry and named and shamed Justice Karnan for making a false complaint, his credibility would have fallen without ending up getting him projected as a victim. I think no person should be above humanity. Just because lawyers can’t cease to call judges as lords doesn’t mean they can’t be condemned at all. Even “God” would be condemned once in a while, irrespective of the blasphemy laws, especially in Hinduism, where the very many “Gods” are often seen conspiring and gossiping about each other. I wonder if “lords” in judiciary are any different. It would be pertinent for all these “lords” to chose one highest “lord” amongst themselves for hearing grievances against each other, else a monkey in the form of the president of India is inevitable. And this can indeed be raised as a question of law; i.e., who should judge the judges?
Note: I have a bias against Justice Karnan even since he pronounced that pre-martial sex tantamounts to marriage.