Proceedings against a whistle blower judge and action without providing proper opportunity to be heard.

Noting
his presence before the court, the bench, also comprising Justices Dipak Misra,
J Chelameswar, Ranjan Gogoi, M B Lokur, P C Ghose and Kurian Joseph, asked
Justice Karnan if he was willing to tender an unconditional apology and
withdraw his earlier communications. Justice Karnan, who had alleged
discrimination and social boycott by companion judges on various grounds
including his being Dalit, said, “I am also holding constitutional post. My
dignity has been hurt and work has been taken away without hearing me.”
The
bench asked him to take time and legal assistance to respond. He, however,
argued: “I made complaints to the Chief Justice of India and the prime
minister. A suo motu contempt proceeding was initiated against me. Before
hearing me, my work was withdrawn.”
Justice
Karnan said the police entered his office to serve the warrant though he is a
sitting judge holding a constitutional office. “The insult is not only to me,
but to the entire judiciary,” he said. On this, the bench said it had issued
notice earlier. When he failed to appear before it, only then a bailable
warrant was issued. During the hearing, the bench asked Attorney General Mukul
Rohatgi if Justice Karnan’s earlier communications could be considered. Rohatgi
said such conditional apology was not to be allowed.
Justice
Karnan’s anger might be out of feelings of discrimination, isolation and, or,
humiliation. His attack on his brother Judges of the Madras HC, sitting and
retired, is perhaps vindictive. He accuses them of having indulged in
corruption, nepotism and malpractice. Though many accused of corruption and
malpractices by him could be innocent or could have indulged in venial and not
venal act of corruption or malpractice, the allegation against at least a few
of them may not be unfounded.
But
the question to be answered is whether alleging corruption against sitting or
retired Judges of the high court or the Supreme Court amounts to contempt of
court as defined in Section 2(1)(c) of the Contempt of Courts Act, 1971 or will
it attract the inherent jurisdiction of the Supreme Court under Art.138, r/w.
Arts. 140 and 142 of the Constitution to punish a person for contempt of court.
The
concept of contempt of court is a cathartic jurisprudence, which has its origin
in the Canon Law and, in particular, the Canon Law of the Dark Ages, a
jurisprudence of a time when the offence of heresy, nay, contempt of the
Church, where the contemnor is burnt alive at a stake.
The in
terrorem (a legal threat, usually one given in hope of compelling someone to
act without resorting to a lawsuit or criminal prosecution) jurisprudence of
contempt of Court militates against all canons of justice and fair play; it
flourished in the Middle Ages when Inquisition was the mode of justice
administration, where contemnor was tortured to extract guilt. The foundation
of The Contempt of Courts Act, 1971 on the jurisprudence of the Dark Ages is
classically exemplified in Sub-Section (5) of Section 17 of the Act.
Our
constitutional and criminal laws are founded on the principle that the guilt
against a person accused of an offence ought not to be wrung out of him, but
has to be proved against him by other men and means.
Sub-Section
(5) of Section 17, supra, places the burden to prove his innocence upon the
contemnor; it requires him to file an affidavit in support of his defence and
empowers the Court to determine the matter on the affidavit of the contemnor.
Section 17(5) of the Contempt of Courts Act, 1971, therefore, is in violation
of Article 20(3) of the Constitution, which states that no person accused of
any offence shall be compelled to be a witness against himself; so too Arts.
21, 14 and 19 thereof, which are required to be read together.
The
power of contempt, as is presently exercised by the judges of the higher
judiciary is, with much respect, more susceptible to be abused than used.
I
have witnessed such misuse often against the voiceless, the outspoken and
persons who are upright. The power of contempt has often been misused against
the voices of truth, even though truth is an undeniable defence against
contempt proceedings.
Resorting
to the power of contempt without application of judicial mind has
ramifications. It creates fear, a terror, and worst, hatred, in the minds of
citizen. As pointed out, the fear has led to not venturing to write anything
about the functioning of the judiciary, except eulogising and flattery.
Undoubtedly,
in the suo motu contempt of court proceeding against Justice Karnan, the
prosecutor and the judge, both at once, are the judges themselves. The contempt
of court law is undemocratic and, assuming it to be otherwise, the question is,
could any action lie against Justice Karnan?
Even
assuming that Justice Karnan has made allegations of corruption and
malpractices against his judges, he has not committed any contempt of court.
The
concept of equality before law and equal protection of law is at the core of
the Constitution.
For
the judges against whom Justice CS Karnan has made the allegations of
corruption, the law provides for remedy, both civil and criminal.
It is
enough to refer to the suit filed by Justice PB Sawant, former judge of the
Supreme Court, against Times Now claiming Rs 100 crore as damages to support my
contention that law provides for adequate remedy if Justice Karnan has made
false or scurrilous allegations against his brethren.
Is it
then right for me to expect the vilified judges to institute civil and criminal
cases like ordinary citizens? Yes, because in the eyes of the law, all are
equal; the immunity which judges enjoy is for what they do from the seats of
justice.
I am
made to understand that some of the allegations made by Justice Karnan are
against the chief justice of the Madras High Court on the administrative side
about the construction of court complexes, appointment of judges. It must be
said that a situation where judges are accused of corruption and they are
forced to institute civil and criminal cases is against their prestige and
honour and is no way an ideal situation.
Corruption
is undoubtedly spreading its tentacles in the corpus of the justice delivery
system, which does not merely mean judges alone.
There
ought to be a remedy. The remedy is not in silencing the whisleblowers with the
guillotine of contempt of court. There’s a need to bring into existence a
credible mechanism by which allegations of corruption, nepotism and
malpractices against judges are investigated and those who are guilty are
brought to book without impinging their independence and the sanctity of the
justice delivery system.
The
judicial function has been considered to be sacrosanct; courts are temples of
justice; its majesty and credibility and the confidence of the public has to be
zealously guarded, but not by silencing whisleblowers and upright men and women
who dare to point out instances of corruption, nepotism and malpractices,
risking their professional prospects, nay, even their freedom and liberty.
Mathews
J. Nedumpara is president of National Lawyers Campaign for Judicial
Transparency

The
views expressed are personal

2 comments on Proceedings against a whistle blower judge and action without providing proper opportunity to be heard.

  1. The judicial function has been considered to be sacrosanct; courts are temples of justice; its majesty and credibility and the confidence of the public has to be zealously guarded, but not by silencing whisleblowers and upright men and women who dare to point out instances of corruption, nepotism and malpractices, risking their professional prospects, nay, even their freedom and liberty.

  2. Justice Karnan’s anger might be out of feelings of discrimination, isolation and, or, humiliation. His attack on his brother Judges of the Madras HC, sitting and retired, is perhaps vindictive. He accuses them of having indulged in corruption, nepotism and malpractice. Though many accused of corruption and malpractices by him could be innocent or could have indulged in venial and not venal act of corruption or malpractice, the allegation against at least a few of them may not be unfounded.

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