Co-Written by Chitta Ranjan Behera & Dr. Krushna Chandra Bal
The order of the Supreme Court delivered on 9 May 2017 while directing the arrest and imprisonment of Justice C.S. Karnan for contempt of court did also forewarn the media not to publish any order issued by him. There are compelling reasons for which we the people of India need to be concerned with the second part of the said order issued by the apex court. Legally speaking, the first part of this unprecedented order is conceivable within the meaning of Article 142 of Constitution (Enforcement of decrees and orders of Supreme Court) read with Article 129 that vests the Supreme Court with ‘power to punish for contempt of itself’ and also Section 16 of Contempt of Courts Act 1971 that provides for remedy to ‘Contempt by judge, magistrate or other person acting judicially’. But its second part is ostensibly not so and has the appearance of exceeding the brief granted to any Court under the Constitution or the existing contempt law.
The very law which the apex court made use of for punishing Justice Karnan with a six-month imprisonment, namely the Contempt of Courts Act 1971, categorically states in Section 5 “Fair criticism of judicial act no contempt- A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. Needless to say, all that the expression ‘fair criticism’ implies is that any report or review of a decision or order of a court ought to present impartially, objectively and authentically the stance of both the parties to the dispute, without ever manifesting any subjective tilt towards or against either of them. Thus, going by the mandate of Section 5 of the Act, every member of the press, whosoever wish to cover the Supreme Court versus Justice Karnan episode through the agency of any print or electronic media needs to allot reasonable space to the standpoint of the accused Justice Karnan as juxtaposed to that of the sentencing 7-Judge Bench, otherwise how his/her media story can be worth ‘a fair criticism’ as required of law. It seems the 7-Judge Bench of the apex court, seized by a a sense of feverish hurry to settle scores with their proven bête noire, a rebellious brother judge of Kolkata High Court lost the cool and, in effect, unread the established law of the land while admonishing the press not to publish his orders. Just as an ordinary mortal under the grip of a fit of an impulsive rage tends to commit unconscionable omissions and commissions against another individual or even against the community at large, so has the apex court in its unrestrained zeal and impulse to chase down Justice Karnan committed an unusual and equally importantly an avoidable blunder intended against the entire fourth estate.
There being no verbatim text of the crucial Supreme Court order available in the public domain, no other option save relying on whatever scrappy reports have trickled through the print or the electronic media. Invariably all the media reports quoted the portentous Supreme Court Order which inter alia ruled, “We are of unanimous view that Justice CS Karnan committed contempt of court, contempt of judiciary and the process”. But, this Order of the apex court didn’t carry anything as to why they wanted the entire press to observe a black-out in respect of the apparently controversial order of Justice Karnan. All that this ominous Order implies is a conspicuous case of self-indulgent, self-delighting discrimination displayed by the 7-Judge Bench of the apex court, the quintessential message of which simply runs like this- no problem for the media would ever arise if they publish the punitive orders of the apex court delivered against Justice Karnan, but they would be facing a veritable problem if they happen to publish any impugned order of Justice Karnan that chastised the CJI-headed 7-member Constitutional Bench of the Supreme Court. Of course, the Section 7 of the Act authorises the Court to prohibit the publication of the whole or part of the ‘information relating to the proceeding’, but subject to certain qualifications, such as, if and “where the publication is contrary to the provisions of any enactment for the time being inforce” or “where the court, on grounds of public policy or in exercise of any power vested in it, expressly prohibits the publication” of such information or “where the court sits in chambers or in camera for reason connected with public order or the security of the State”. Thus, the authority vested in the Court to prohibit the publication of whole or part of a proceeding is not an omnibus one, but qualified and needs to fulfil the above conditions specified in Sec 7 of the Act.
The moot question now arises- Did the 7-Judge Constitutional Bench of the apex court ever, in this case, articulate the statutory rationale that guided them to prohibit any media publication of Justice Karnan’s impugned order? Did the order of the apex Court mention any specific provision of a law or public policy that prompted them to call a halt to the publicity of Justice Karnan’s Order? Even granted that the Court applied the above prohibition “in exercise of any power vested in it”, should it not specify which of such powers it did exercise to inhibit the media from carrying any story on the impugned order of Justice Karnan? A more pertinent question arises, if in the unanimous view of the Bench the impugned Order of Justice Karnan is contemptuous of the judiciary and the judicial process, what is the harm in letting it do the rounds through media and thereby get discredited in the eyes of the public on its own? Such a more advisable course of action, if would have been chosen by the Supreme Court in respect of the impugned order of Justice Karnan, would have served the Court’s intention of fixing him more firmly than what transpired as of today.
Given the rough-shod manner in which the Supreme Court dictated its prohibitory order on the publicising of Justice Karnan’s order by the country’s media community, it owes an unstinted excuse to ‘we the people’, the creator of this very Constitution, of which the Supreme Court happens to be both a creature and a custodian. Who else if not the Supreme Court is the theorist as well as the watchdog of the ‘basic structure’ of the Constitution, which incorporates the fundamental rights enshrined in Part-III? But, the irony is, as would be obvious, that the same Supreme Court, in its rabid craze, to hunt a recalcitrant High Court Judge down, has thrown a preeminent fundamental right of citizens i.e. freedom of expression guaranteed under Article 19(1)(a) of the Constitution to the wind. The said Order of the Apex Court, by directing the entire community of media to virtually boycott the utterances of Justice Karnan has also, in consequence, trampled another preeminent fundamental right i.e. Right to Life and Liberty guaranteed under Article 21 of Constitution under foot, so casually.
The 7-Judge Constitutional Bench of Supreme Court by sentencing Justice Karnan has also done violence to a celebrated maxim of natural justice ‘Nemo judex in causa sua’ which means ‘no-one should be a judge in his own cause’. It is they against whom Justice Karnan in the capacity of a High Court Judge had passed his sentencing order the other day. That being so, it is not fair that they who should have sat over the judgement against the charges levelled against them by the former. Either they should have entrusted the adjudication of the matter to another Bench comprising the judges other than themselves, or, should have, as suggested by former Addl. Solicitor General Mrs. Indira Jaisingh, referred the matter to the Parliament for removal of Justice Karnan from High Court judgeship ‘on the ground of proved misbehaviour or incapacity’ as required under Article 217(1)(b) read with Article 124 (4) and (5) of Constitution. How does one explain such a grotesque, if not squarely illegitimate, transgression of natural justice by the Chief Justice and his six brother judges, if not by a reference to their deeply embedded pathological megalomania combined with a streak of insatiable vengefulness against a wrangling High Court judge?
The unseemly, unsavoury episode of Justice Karnan vs Supreme Court is obviously not going to end with his 6-month incarceration or his continual baiting of the Supreme Court’s warrant of arrest. In fact, the material backdrop that led to the unfolding of the exceptional Karnan phenomenon has got the potential to help tens of hundreds of rebel Karnans emerge within the outwardly hallowed but inwardly hollowed precincts of a self-enclosed judiciary. Like the tragic episode of Mahabharat in which the combined might of the cunning Saptarathi could exterminate the lone hero Abhimanyu, a veritable member of their own tribe, the combined strength of 7-member Bench of the apex court may, in all likelihood, make Justice Karnan, a member of their own fraternity, bite the dust at the end of the day. But like the legend of Abhimnyu surviving to this day in nation’s racial memory with the glory that belongs to him, the cardinal issues that Justice Karnan raked up in course of his singularly iconoclastic engagement with a determined collective of his seniors in the apex court, are bound to linger long after the current episode is forgotten. And, in all probability, it would not only continue to provoke the sensible segments of the judicial literati but also the law-knowing citizenry at large, to question the ways of the judiciary and how it has been faulting on several fronts to the displeasure and discomfiture of all concerned.
As a matter of fact, Justice Karnan, irrespective of the vein in which he has been verbalizing his angst against the superior judiciary, is a soothsayer on the chronic ills that bedevil the entire judicial system, because of which the teeming millions have been bearing the brunt of corruption and nepotism, apathy and opacity, delay and discrimination, to say the least. Above all, the common people readily share Justice Karnan deep-seated ire against an absurd and unparalleled system of judicial administration euphemistically called ‘the collegium’, which brooks no dissent nor any counter-point even emerging from within itself, resists to the hilt any suggestion for systemic reform coming from any quarter including even Parliament and treats with ruthless unresponsiveness any complaint bearing on their efficiency, efficacy or intelligence. We the people are yet to understand, why the apex court did lose its cool over such a trifle as cc-ing by an aggrieved, exasperated and anguished Justice Karnan of his complaint of corruption charges levelled against 20 of his brother judges to Prime Minister and other constitutional authorities? Does the Article 350 of Constitution not entitle any person “to submit a representation of his grievance to any officer or authority of the Union or in the State, as the case may be”? Be that as it may, the 7-judge Bench who have already pronounced the sentence on Justice Karnan owes to him and to the nation at large a speaking order as to how his charges of corruption coupled with his resentment against the collegium system are unfounded and ill-motivated deserving of penal action under the Contempt law.
Above all, the 7-judge Constitutional Bench, who by their seemingly cryptic order of 9 May sought to prohibit the press from publishing the impugned order of Justice Karnan, have a need to justify their otherwise reprehensible action on the authority of Constitution or any other law of the land, so that the shaken faith of the common man in the Supreme Court as the ultimate watchdog of Constitution can be restored to some extent. Failing to live upto this bare minimum of judicial probity and integrity, the 7-member Bench of Supreme Court shall be deemed to have ushered in an era of unannounced emergency against freedom of the press, even worse than that of the much discredited Emergency rule of mid-70s by the Prime Minister Indira Gandhi. Worse, because the then PM took at least the alibi of Article 352 of Constitution to proclaim her brand of emergency against freedom of the press, whereas the 7-judge Bench of Supreme Court has had no alibi whatsoever, to offer in defence of their fiat in gagging the press around Justice Karnan.
Chitta Ranjan Behera, Cuttack & Dr. Krushna Chandra Bal, Bhubaneswar Email: [email protected]