C S Karnan row: Nation watches a rare situation where an errant judge takes on the SC

Justice C S Karnan of the Calcutta High Court (formerly of the Madras High Court) caused rather a stir in January this year when he addressed a letter to the prime minister wherein he named twenty current and former judges of India's higher judiciary and accused them of corruption. This resulted in the Supreme Court taking notice of these allegations and summoning Justice C S Karnan to appear before it in order to explain himself. He failed to appear despite a valid summons being served on him and the seven-judge bench hearing the matter has issued a bailable warrant against him on Friday to ensure his presence on the next date, on 31 March.

CS Karnan. Bar and Bench website

CS Karnan. Bar and Bench website

To put it bluntly, our system wasn't designed for a situation where a judge of a High Court wouldn't defer to a request from the Chief Justice of India to appear before the Supreme Court. In fact, our system wasn't designed for a rogue judge at all. There's no precedent anywhere in the history of the Indian judiciary to even begin to provide guidance on how to go about dealing with a situation like the one Justice C S Karnan has caused and possibly nowhere in the Commonwealth have we seen a precedent like this.

Common Law Judges are famous for their respect for order and tradition and always fall in line behind the law and quite frankly for many judges, the fact that they had a summons issued for contempt issued against them alone would be sufficient cause to offer their resignation. But to wilfully disregard the summons and have a warrant issued against them, is akin to placing straw around the house and getting ready to set it on fire.

Obviously, this has caused a painful and panicked reaction across the Bar. Only on Saturday, Mr Ram Jethmalani, a senior advocate and member of the Council of States (Rajya Sabha) addressed a letter to Justice Karnan asking him in no uncertain terms to reconsider his behaviour and withdraw his remarks at the earliest possible opportunity. Further, he even offered to personally counsel the judge in order to help him fall in line.

The judge will do well to heed the advice of Mr Jethmalani, who is older than India's independent judiciary and speaks from a place of good sense and wisdom. But it remains to be seen if Justice C S Karnan will take up this offer of redemption, for it seems that there has been much water that has flown under the bridge to facilitate an outright apology from him to bring this distasteful business to an end.

Ram Jethmalani's letter to CS Karnan by Firstpost on Scribd

The Constitution is quite clear, the Parliament has the power to impeach judges, the Judiciary cannot duo-motto do it. So even if Justice Karnan is convicted of contempt, it may be difficult to remove him as a judge. Removing judges of the higher judiciary is a notoriously difficult process and so far in the history of modern India, no judge has completely been impeached, most of them resigning half way through the process.

This judge, from his conduct so far, seems like someone who wishes to fight it to the end, so it will take the Parliament to step in and impeach him should he be convicted of contempt. Though in a lighter vein, transferring him to Sikkim as in the case of P D Dinarkaran (the last troublesome judge in recent memory) may no longer be a workable solution, given the protests from the Bar there last time.

If he is convicted of contempt, the Supreme Court could also state that Justice C S Karnan vacated his office the moment he committed contempt because contempt would violate the oath of office he swore when he took office as a Judge.

Therefore, they could pass and order declaring that he was no longer a judge of the Higher Judiciary or they could permit him to resume his judicial duties once he has purged himself of the contempt. Though it remains to be seen how the public confidence would be affected by allowing a contempt or to resume his judicial duties.

But for now, the country watches as the Supreme Court tackles an unprecedented situation. India has dealt with many errant judges before, but it is rare to deal with a judge who has openly decided to take on the Supreme Court and today faces arrest for it.

With bail set at Rs10,000 or an amount to the satisfaction of the arresting officer the Director General of Police, West Bengal, it remains to be seen if that's enough to compel his presence on the next date. If it's not, the next logical step is non-bailable warrants, which means an arrest of Justice C S Karnan till he is produced before the Supreme Court and the photo of a High Court judge in handcuffs being produced before the Supreme Court is a visual that almost every person serving in India's legal system wishes to avoid. For a visual like that would cause severe damage to the credibility of India's robust judiciary both at home and overseas.


Published Date: Mar 12, 2017 08:25 pm | Updated Date: Mar 12, 2017 08:28 pm

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