Arguably, Justice C S Karnan created a “bad precedent” by being the first sitting High Court Judge to be sent to prison for contempt of court in May 2017. While there could be hardly any reasonable justification for all the actions by Justice Karnan, the invocation of contempt power by the Supreme Court against a sitting High Court judge has resulted in more ambiguity than solutions for the foreseeable future.

Do judges enjoy special status under the Constitution?

The judges of the Supreme Court and the High Courts, both sitting and retired, are conferred with a “special status” by the Constitution itself. Needless to mention that the judge in a democracy is a public servant and the special status is solely due to the public office they hold. Supreme Court and the High Courts are courts of record and have all the powers of such a court, including the power to punish for contempt of itself, as per Articles 129 and 215 of the Constitution.

What is Court of Record

While discussing this provision in the Constituent Assembly, Dr B R Ambedkar had said:

“… I may briefly say that a court of record is a court the records of which are admitted to be of evidentiary value and they are not to be questioned when they are produced before any court. That is the meaning of the words ‘court of record’. Then, the second part of Article 108 says that the court shall have the power to punish for contempt of itself. As a matter of fact, once you make a court a court of record by statute, the power to punish for contempt necessarily follows from that position. But, it was felt that in view of the fact that in England this power is largely derived from Common Law and as we have no such thing as Common Law in this country, we felt it better to state the whole position in the statute itself. That is why Article 108 has been introduced.

It can be seen that, both the Supreme Court and the High Courts were given the very same powers under those two Articles 108 and 191 discussed in the Constituent Assembly (presently, Articles 129 and 215 of the Constitution).

Similar status of High Court and Supreme Court Judges

While a person who has been an advocate of a High Court or of two or more such courts in succession [Article 124(3)(b) and Article 217(2)(b], is eligible to be considered for the post of a judge of the Supreme Court or of the High Courts. Every judge of the Supreme Court (Article 124) or of a High Court (Article 217) shall be appointed by the President of India by warrant under his hand and seal. A judge may, by writing under his hand addressed to the President, resign his office. It may be noted here that the words used are identical at both the places, whether dealing with the Supreme Court or High Court Judges [Article 124(2)(a) and Article 217(1)(a)]. Removal of a judge of the High Court or of Supreme Court is also by the very same procedure [Article 124(4) and Article 217(1)(b) which refers to Article 124(4)].

Relation vis-à-vis Legislative wing: same restrictions

  • Conduct of Judge can not be discussed in the Parliament/Legislature

According to Article 121, no discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.

Here it may be noted that the Judges of the Supreme Court and High Courts are mentioned simultaneously.

Similar bar is there in Article 211, wherein the Legislature of a State is mentioned instead of Parliament. There also, the judges of the Supreme Court and High Courts are mentioned simultaneously. Only difference is that the exception is not found in Article 211. This is obvious, because an impeachment motion for the removal of the judge is moved only in Parliament and not in any State Legislature.

(ii)           Courts not to inquire into the proceedings of Parliament/Legislature

According to Article 122, the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. Similar bar is there in Article 212 wherein the Legislature of a State is mentioned instead of Parliament.

Thus, it can be discerned that the scheme of the Constitution is separation of powers between the different wings and mutual respect.

Special appointments: Sitting HC judges as ad hoc SC judges

According to Article 127(1) of the Constitution, if at any time there should not be a quorum of the judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc judge, for such period as may be necessary, of a judge of a High Court duly qualified for appointment as a Judge of the Supreme Court, to be designated by the Chief Justice of India.

It may be noted that the phrase “with the previous consent of the President” was an amendment proposed by T T Krishnamachari and accepted by Dr B R Ambedkar on May 27, 1949 in the Constituent Assembly Debates.

Clause 2 of Article 124, holds that:

“It shall be the duty of the Judge who has been so designated, in priority to other duties of his office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court.”

All these discussions and Constitutional provisions unequivocally point to the special status enjoyed by the judges of High Courts on par with the judges of the Supreme Court of India.

Case of Justice Karnan

Contempt against Justice Karnan, then a sitting Judge of the High Court, is an instance wherein the Supreme Court ignored the special status enjoyed by a High Court judge in the Constitutional scheme.

During the pendency of suo moto contempt against Justice Karnan, Supreme Court by its order dated May 1, 2017 directed medical examination of Justice Karnan. There was no law which authorised the Supreme Court to issue such a direction. Even the yet to be notified Mental Health Act of 2017, mandated “informed consent” to testing.

The legal issue whether a sitting judge of the High Court can be dealt with under the contempt jurisdiction of Supreme Court, was not yet decided. However, the bench of seven honourable judges of the Supreme Court, by their order dated May 9, 2017 sent a sitting High Court judge to prison for contempt of court. He was prevented from discharging his duties as a High Court Judge.

As rightly pointed out by the former Additional Solicitor General and senior advocate Indira Jaising, “The question whether the Supreme Court has the power to exercise jurisdiction of contempt of court over a sitting judge of a High Court has never been decided by the Supreme Court itself.” Citing the precedent of Justice Soumitra Sen’s case, she pointed out that “the Supreme Court could have instead written to the Speaker of the Lok Sabha or the Chair of the Rajya Sabha suggesting action under Article 217 (1) read with Article 124(4) of the Constitution”.

Jaising, concludes her views with these prophetic words: “Meanwhile with allegations and counter allegations of corruption by sitting judges against other judges, with ‘dying declarations’ by deceased politicians who were litigants in court against judges who heard their cases, with PILs for investigations against former Chief Justices, with PILs by practicing lawyers supporting judges, we are left with a dark, dark cloud hanging over the judiciary. No one seems to be interested in getting to the bottom of the allegations, neither the Government which could come clean with an investigation into the suicide of a former Chief Minister who switched political parties, nor the judiciary. Only the common woman is left in amazement at what is going on in the temple of justice. Only the sunshine of transparency will lift the cloud. Only due process of law will stop the Justice Karnans of the world form from claiming they are being victimised for being Scheduled Caste. Only a procedure established by law for entertaining complaints against judges, without having to invoke the political process of removal, will satisfy the common litigant that all is well with the Judiciary.”

As pointed out earlier, framers of our Constitution envisaged both the Supreme Court and High Courts to be courts of record having power to punish for contempt of itself. But they would not have imagined a situation wherein judges of those courts show contempt towards each other and some judges invoke those powers against their own brethren. If both the Supreme Court and the High Courts are treated equally in the Constitutional scheme, is it proper to deal with the misbehavior of a High Court Judge under the contempt jurisdiction of the Supreme Court, instead of invoking the remedy under the Constitution, i.e., proceedings for removal of the judge?

Another serious question to be pondered is, if the Supreme Court is invoking contempt powers against a High Court Judge, irrespective of his special status under the Constitution, what prevents it from doing the same against a sitting Judge of the Supreme Court itself? Tomorrow, can a larger Bench issue notice to one or more judges of the Supreme Court itself, if a similar situation arises? Can a Bench of the Supreme Court order medical examination of one of its judges?

Legendary English Judge Lord Denning had these words about contempt jurisdiction:

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”

This is what Justice Felix Frankfurter of the United States Supreme Court has said:

“Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore, judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”

Words of present Chief Justice of Supreme Court of the United States (SCOTUS), John Roberts, during his confirmation hearing is worth reproducing here:

“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”

Need for course correction

There are many silences in the Constitution and it is best left to the wisdom of those who adore the Institutions. Those decisions by the Constitutional authorities create constitutional conventions. If that institution is Court, it is all the more important. While the Supreme Court decides a particular case, it is not only finding a solution to an issue before it, it is declaring the law for future and settling precedent. Needless to say that the precedent created by the Supreme Court in Justice Karnan’s case is bad and it needs rectification.

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K.V. Mohan

Well done

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