Stop targeting whistleblower Justice Karnan. Clean up the judicial system
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.opinion Updated: Mar 31, 2017 12:22 IST
Senior advocate Ram Jethmalani recently wrote a scathing letter to the Calcutta High Court’s Justice CS Karnan, advising him to take back every word he has said about two Madras High Court judges and pray for pardon. Jethmalani has termed Justice Karnan’s actions as lunatic. Neither me nor the National Lawyers Campaign for Judicial Transparency and Reforms (NLC), of which I am the president, supports Justice Karnan nor justifies his “tantrums”. However, the NLC supports Justice Karnan because corruption has spread its tentacles in the justice delivery system.
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?
It certainly will not, as:
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