Coming straight to the core issue, let me begin by pointing out that in an unprecedented step, the Chief Justice of India JS Khehar on February 7, 2017 took the extreme step of deciding to initiate contempt of court proceedings against a sitting Calcutta High Court Judge CS Karnan for continuously levelling innuendos against the Madras High Court Chief Justice and other Judges. In a first, the sitting Calcutta High Court Judge CS Karnan was ordered by a seven-Judge Supreme Court Bench comprising Chief Justice of India – JS Khehar and six senior-most Judges of the Apex Court – Justices Dipak Misra, J Chelameswar, Ranjan Gogoi, Madan B Lokur, PC Ghose and Kurian Joseph to show up on February 13. He was asked to respond to a show-cause notice of contempt of court for writing letters in which he levelled corruption charges against several sitting and retired Apex Court and High Court Judges.
Since the allegations directly affect the image of the judiciary as a whole the Supreme Court took suo motu cognizance of Justice CS Karnan’s letters and conduct and has decided to slap contempt charge on a sitting High Court Judge for the first time ever.
There were times when the CJI after receiving inquiry reports against a sitting Judge, had recommended to the Parliament to initiate proceeding for the removal of the erring Judge but slapping contempt charge on a sitting High Court Judge is happening for the first time in the history of independent India. The Supreme Court Bench has also restrained Justice CS Karnan from dealing with any judicial or administrative work till further orders. “Justice CS 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,” stated the order.
It may be recalled here that Justice CS Karnan had plunged the Madras High Court into a major crisis in 2015 by threatening contempt of court proceedings against Chief Justice Sanjay Kishan Kaul accusing him of interfering in his judicial work; and seeking a CBI probe into alleged forged educational qualification of another High Court Judge. The High Court Chief Justice Sanjay Kishan Kaul has presently been recommended by the Supreme Court collegium to be appointed as a Judge of the Apex Court. Further, Justice CS Karnan has alleged that he has been a victim of caste bias for being a Dalit.
Moreover, Justice Karnan had previously “stayed” orders of the Supreme Court to transfer him, advising the CJI not to interfere in his “jurisdiction” before relenting and accepting his transfer from Madras to Calcutta. Not just this, he had sought an explanation from the CJI over the move. He had questioned the CJI’s authority as the head of the collegium to issue transfer orders for “better administration”. The apex court had then restrained him from issuing any judicial order – suo motu or otherwise – and imposed a blanket stay on all directions issued by him after February 12, 2016, when the collegium moved to transfer him. However, he later joined Calcutta High Court when the President set a deadline.
Days later, Justice Karnan wrote a letter to the CJI and blamed his actions on “loss of mental balance due to mental frustrations” over alleged caste bias he faced in the High Court but the damage had been done which cannot be undone now!
Matters don’t end here. Recently, Justice Karnan wrote an open letter to Prime Minister Narendra Modi, urging him to take action against what he described as “high corruption at the judiciary”. In his letter dated January 23, Justice Karnan furnished “an initial list of corrupt Judges”, and named 20 Judges of the Supreme Court and High Courts. The letter made very damning allegations like “High corruption in the judiciary is still being perpetrated in an arbitrary fashion and without fear”.
It is a no-brainer that this has sent the whole judiciary in a fix as it has directly dented the unblemished image of the clean judiciary. He claimed that his allegations could be proved through “some competent agencies”. The letter contained the name of a High Court Chief Justice who is due for elevation to the Supreme Court.
As things stand, the Court said all letters and other communications that formed the basis of suo motu contempt of court proceedings shall be supplied to Justice Karnan to enable him to argue his case. On February 8, while seeking Justice Karnan’s personal presence, the Bench said issuance of a notice of contempt to a High Court Judge was a “matter of vital importance” since there had been no such precedent and that whatever the seven-Judge Bench now rules would be the law for years to come.
It must be recalled that the Supreme Court in the Second Judges case of 1993, had held in a majority judgment that consent of the Judge was not necessary for transferring him out, provided it was done with the full and effective consultation with the Chief Justice of India. The transfer should be done in public interest and not as a punishment. The 1993 judgment referred specifically to the 1977 landmark decision of the Supreme Court in Union of India v. Sankal Chand Sheth case and S P Gupta case of 1982, both of which had categorically held that there was no requirement of prior consent of the Judge concerned before his transfer under Article 222.
However, the Constitution Bench in the matter has added that the Court has to be “very careful” in the manner it proceeds in this matter and has sought assistance of Attorney General (AG) Mukul Rohatgi and senior lawyer KK Venugopal. Chief Justice JS Khehar said, “We have to be very careful. We have to hear all of you and we have to hear him. Everything has to be evaluated as per cause and effect: What we can do, what we cannot do…If punished, will he remain in office or not.” Earlier, Rohatgi who is the top officer of the Apex Court for prosecuting suo motu contempt proceedings, urged the Bench to proceed against Justice Karnan as his communications were “completely scandalous, calculated and brought disrepute to the institution.” AG Mukul Rohatgi minced no words in stating upfront, “The time has come for this Court to set an example that it would not hesitate to act even against one of his own if a dent is sought to be caused in the administration of justice.”
Justice Karnan had earlier also alleged that he had been a victim of caste bias for being a Dalit and had accused the Madras High Court Chief Justice of harassing him. He had also threatened to ask the National Commission on Scheduled Castes to initiate a detailed inquiry against the High Court Chief Justice Sanjay Kaul for harassing a member of the Dalit community and also slapping a case against the Chief Justice under stringent provisions of the SC/ST Atrocities (Prevention) Act. A beleaguered Madras High Court had then rushed to the Supreme Court accusing Justice Karnan of judicial indiscipline, challenging the authority of the High Court, passing order without jurisdiction and lacking in self-restraint. The Supreme Court had on May 11, 2015 restrained Justice Karnan from initiating any action against the Chief Justice.
All said and done, now the outcome of the proceeding against the Judge is being keenly awaited. If the Apex Court finds the sitting Judge guilty of contempt, would it punish him with imprisonment and send him to jail? If he is found guilty and sent to jail, would he automatically lose his job as the High Court Judge or the seven-Judge Bench would have to make a recommendation to the Parliament for his removal? Interestingly enough, in its Union of India v. Sankal Chand Sheth judgment of 1977, the Supreme Court had held that neither the President nor the Chief Justice of India had the power to punish a Judge for misconduct.
Under the Constitution of India, the only process for sacking a Judge of the High Court or the Supreme Court is through a removal motion passed by two-third majority in each House of Parliament. Till date, no Judge has been removed by Parliament even though thrice such motions had been initiated in the past. No doubt, the caste angle also threatens to generate a wide controversy stirring a hornet’s nest if matters finally reach Parliament.