Justice Karnan case has trigerred a debate on the sensitive issue of contempt of court. A perspective overview of the issue and the bearing it has on the justice delivery system and integrity of judges
Choodie Shivaram
The seven-member bench led by Chief Justice JS Khehar sentencing Justice Karnan, a sitting high court judge to six months imprisonment with immediate arrest has created judicial history for the wrong reasons. For five months the apex court had to battle a challenge that came from within. In January this year, Justice Karnan in his open letter to the Prime Minister named 20 sitting and retired Supreme Court and High Court judges, accusing them of corruption. Slapping Contempt charges on him, the apex court stripped Justice Karnan off administrative and judicial powers. The message was loud and clear; none will be spared including a judge, if the Judiciary is humiliated.
Upholding dignity of courts and public faith in the justice delivery system is one of the cardinal principles of the Contempt of Court Act, 1971. Any act that defies, disrespects or insults the judiciary attracts contempt. Contempt proceedings against Justice Markandeya Katju had also created ripples! Justice Katju criticised the apex court’s judgement in the Soumya murder case; blogging “even a student of law knows this elementary principle that hearsay evidence is inadmissible”. Contempt charges were dropped when Justice Katju tendered an unconditional apology to the court.
Baradakanth Mishra’s case was perhaps the earliest where a judicial officer was hauled up for contempt. In 1971, Baradakanth Mishra, an Additional District and Sessions Judge, was convicted and sentenced under the Contempt of Courts Act, by a Full Bench of the Orissa High Court for declining to follow a binding precedent of the High Court. There were six contempt proceedings against him. The Bench opined that he deserved the maximum sentence possible under the law. The Supreme Court, while concurring with the verdict of the High Court, considered that the officer was at the end of his judicial career, and reduced the sentence, directing Shri Mishra to pay a fine of Rs 1,000.
In 1988, Law Minister P Shiv Shankar made scathing remarks that the judges of the Supreme Court had favoured anti-social elements who have found their haven in the Supreme Court. He was hauled up for contempt. Justice Sabhaya Sachi Mukherji dismissed the petition stating “ it comes under fair comment and did not amount to contempt”.
In 1972, EMS Namboodripad, then Chief Minister of Kerala, was hauled for contempt for making vitriolic remarks attributing class biases to judges. The High Court of Kerala set aside his conviction stating that the ends of justice were served by exposing the appellant”s ignorance about the true teachings of Marx and Engels (behind whom he sheltered) and fined him Rs. 50.
The Old Fools case and the Bahamas case are cited as ideal examples of pardon setting the benchmark for a mature judiciary. Relating to the well known Spycatcher case of 1987, the Daily Mirror had published photographs of all three judges who heard the case and had written “OLD FOOLS” in capital letters below the photographs. No contempt proceedings were initiated against the
newspaper. One of the judges, Lord Templeman said “Judges in England did not take notice of personal insults. Admitting that he was old, and if someone thought he was a fool, such person was entitled to their opinion.”
The Bahamas case is another outstanding example of judicial tolerance which eminent jurists in India have often cited. In 1892, a man from the Bahamas Islands, published a letter in a newspaper in pungent language criticising the Chief Justice as an incompetent judge. He even wished that it would be providential if the judge were to die. A Board of 11 members felt that the letter could be tried for libel but would not amount contempt of court.
Indian Laws have evolved out of European legal systems. The contempt of court act of 1926 was repealed in 1952 making way for a revised Act. The absence of the constitutional right to personal liberty and freedom of expression gave rise to a new law. In 1971, the Contempt of Courts Act encompassing freedom of speech as well as safeguarding the dignity of our courts was enacted and the 1952 Act was repealed. In 2006 the Act was amended to include justification by truth as a valid defence in Contempt of court proceedings.
In the early 1800s, famous jurist Thomas Erskine had dared a judge who threatened him with contempt saying “your lordship may proceed in whatever manner you think fit. I know my duty as well, as your lordship knows yours”. Threats of contempt make way for courtroom humour too.
Lord Atkin had observed, “Justice is not a cloistered virtue, she must be allowed to suffer scrutiny, even if it were outspoken comments of ordinary men. The key word is “justice”, not “judge”. The judgment of the famous Mulgaonkar case in 1978 authored by legal luminary Justice VR Krishna Iyer, is an exhaustive narrative on issues governing Contempt of Court defining the boundaries of this law. “The judiciary cannot be immune to criticism. Judges have frailties; after all, they are human, they need to be corrected by independent criticism”.
Another landmark judgment of Lord Atkin is the famous case of Debi Prasad Sharma v. The King-Emperor in June, 1943. The publisher and editor of the Hindustan Times were found guilty of contempt by the Allahabad High Court for criticising the Chief Justice for issuing a circular to collect funds for the war. Lord Atkin set aside the order stating, “Judges cannot afford to be too sensitive”.
One of Britain’s most celebrated jurist Lord Denning’s observations implores the judiciary to exercise restraint while applying contempt laws. “We will never use this jurisdiction as a means to uphold our own dignity. Nor will we use it to suppress those who speak against us. We do not fear criticism; it is the right of every man, to make fair comment”.
Cautioning the judiciary against indiscriminate use of contempt laws, in 2000 Justices RC Lahoti and KT Thomas of the Supreme Court said, “the jurisdiction to punish for contempt is summary but the consequences are serious. It is not personal glorification of a Judge in his office”.
The slapping of contempt of court may seem like an iron hand; the magnanimity of courts in handling them with stoic grace cannot be ignored. Scathing remarks and criticisms have been condoned by the courts while accepting a genuine apology, which has universally been found to be the safest course of action when facing contempt.
Despite rising from the Bar to occupy one of its revered posts, Justice Karnan, exceeded all limits of upholding the sanctity of the judiciary and the solemn chair he occupied. Perhaps he employed the wrong methods to draw attention to what he saw as corruption in the judiciary. His behaviour of storming into a brother judge’s court in Chennai too did not bode well in projecting his image of upholding the dignity of the solemn chair. His brazen defiance in showing an absolute disregard for the time and resources of the judiciary is a betrayal to the nation. Attorney General Mukul Rohatgi, during the hearings, told the bench “those within the judiciary who are guilty of disrespecting the institution must be dealt with sternly. If you don’t act now, what will happen later? The court has been more than patient, and it is time to restore public confidence in the judiciary for the sake of upholding the rule of law”.
The apex court after giving a long rope, was left with no option but to deal with the case sternly. Failure to do so would have been dangerous for justice delivery system and public faith. Justice Karnan’s case we hope will be sealed as ‘rarest of rare’ cases. The Nation desires that judges will remain faithful to the trust reposed in them; both in integrity and behaviour.
(The writer is a Bengaluru based columnist)
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