Justice CS Karnan – an ignominious end : Legal Notes by Arvind Datar

For the first and perhaps last time in our judicial history, a sitting High Court Judge has been sent to jail for six months for committing contempt of the Supreme Court. This is the maximum sentence contemplated by section 12 of the Contempt of Courts Act, 1971. This is also perhaps the last time that this may happen, because it is almost impossible to foresee any other judge behaving in a consistently irresponsible manner.

Which High Court Judge would ever sentence seven Supreme Court Judges to imprisonment or direct them to pay compensation of Rs. 2 crore each?

A controversial stint:

Justice CS Karnan was appointed as an Additional Judge of the Madras High Court in March 2009. At the time of his appointment, very few advocates who practice in the High Court had even heard of him. He was made a permanent judge two years later and courted controversy for the first time in November 2011, by making a complaint that he was being harassed and victimized by brother judges because he was a Dalit.

He continued to create problems for various judges and it was Chief Justice RK Agrawal who requested the then Chief Justice of India P Sathasivam to transfer Justice Karnan to another High Court. Sadly, this was not done.

In 2014, there was a serious controversy on certain names which had been recommended for elevation to the post of High Court judges. While a public interest litigation was being heard in one court room, Justice Karnan, despite being a sitting judge, walked into that court room and complained that the selection of names was unfair. Apart from these antics, he reportedly had serious differences of opinion with other judges and had made serious allegations of a personal nature against some of them.

As the years went by, his acts became completely unbecoming of a High Court judge. The common thread between all his complaints was to project himself as being victimized on grounds of being a Dalit judge and consistently threatening to invoke proceedings under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Indeed, the entire Bar of the Madras High Court was shocked to note that Justice Karnan accused Chief Justice Sanjay Kishan Kaul of discrimination on grounds of caste and began passing orders against his decisions. This required intervention of the Supreme Court on more than one occasion. Eventually, it became impossible to control his behavior at Chennai and he was transferred to the Calcutta High Court. It would be fair to state that his seven year term in the Madras High Court did not have a single redeeming feature.

The beginning of the end of Justice Karnan’s career began in January 2017, when he wrote a letter to the Prime Minister accusing no less than 20 judges – both sitting and retired – of being corrupt. This led to the Supreme Court initiating suo motu contempt against him.

Despite repeated opportunities, he remained unrepentant and began passing the most bizarre orders as a counter-blast to the orders that were being passed by the Supreme Court. Seriously doubting whether these acts could have been committed by a sane person, the Supreme Court directed that a medical examination be done at Kolkata, which Justice Karnan refused to undergo.

The question as to whether the Supreme Court could have directed such medical examination has now become academic in light of the subsequent order passed by the Supreme Court. Not only did Justice Karnan refuse to undergo any medical examination, he passed what was the last and fatal order on 8^th May, 2017.

In this order, he directed imprisonment of seven judges who sat on the bench hearing contempt petition and also against Justice R Banumathi, another sitting judge of the Supreme Court. Justice Karnan claimed that the orders passed by the Supreme Court amounted to harassment towards an innocent Dalit judge warranting imprisonment under the SC/ST Act.

Accordingly, he imposed a sentence of five years rigorous imprisonment to eight Supreme Court judges. If this were not enough, he also directed that their passports to be taken away and also directed recovery of the compensation of Rs. 2 crore from all these judges. Finally, each of the judges was asked to pay a fine of Rs. 1 lakh to the National Commission of Scheduled Castes and Scheduled Tribes within one week from the date of this order. This order virtually sealed the fate of Justice Karnan.

The orders passed by Justice Karnan under the said Act are wholly untenable under that Act. Section 3 of that Act contains an exhaustive list of atrocities which warrant criminal action. None of the judges of the Supreme Court could even be remotely accused of committing any of the stipulated atrocities mentioned in Section 3.

Moreover, Section 14 mandates the setting up of an “Exclusive Special Court” to try the offences under Section 3 and contemplates a proper trial. A High Court judge cannot usurp the powers of the Exclusive Special Court which is set up under Section 14 and summarily pass orders of imprisonment.

There is no doubt that the orders passed by Justice Karnan, particularly from January 2017 onwards, constituted contempt of court. Subsequent events show that there was a clear case of both civil and criminal contempt. As a court of record, the powers of the Supreme Court are even wider and it can lay the limits of its own jurisdiction unless otherwise expressly enacted. [Naresh Mirajkar v. Union of India, AIR 1967 SC 1 at para 60]

Under section 23 of the Contempt of Courts Act, 1971 read with Article 145 of the Constitution, “The Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975” have been framed. Interestingly, there is no prescribed procedure to be followed where the Supreme Court takes a suo motu action. The earlier orders indicate that Justice Karnan had been given notice and also opportunities to submit his reply but he never availed the same. The order directing his imprisonment specifically states that a detailed order will be passed later.

This sordid saga will once again generate adverse comments about the collegium system but it will be incorrect to condemn the existing system just because of one egregiously erroneous appointment. One cannot forget that the collegium system has selected several outstanding judges and it is still a far better method than the earlier method giving primacy to the executive.

Nevertheless, this regrettable case raises interesting questions of law:

1. Would it have been proper to first convict Justice Karnan and then adjourn the case for sentencing? (This was done in the case of Vijay Mallya who was also convicted on the same day but his case has been adjourned to July 10 for imposing a sentence.)
2. Can a High Court sentence a District Judge to imprisonment by adopting a similar procedure?
3. Can a Division Bench of two Supreme Court judges pass a similar sentence? What should be the strength of a bench that passes such a sentence?
4. The Constitution enables the removal of a High Court Judge only by the process prescribed under Article 124(4) – by what is popularly termed as the “impeachment process”. In the present case, Justice Karnan would have retired on 11^th June, 2017. If he had several years to continue, can a conviction for contempt result in his removal as a High Court judge in view of the mandatory provision of Article 124(4)?
5. Will it be necessary for Parliament to pass a resolution for his removal under Article 124(4) after the sentence of imprisonment is passed? What happens if Parliament does not pass any resolution for his removal? Will the convicted judge continue in service even if no work is allotted to him?
6. Is it not necessary to set-up an in-house correction mechanism to deal with judicial misconduct or other cases of impropriety?

Arvind Datar is a Senior Advocate of the Madras High Court.