CS Karnan's contempt sentence not ideal way to enforce judicial discipline; SC might have opened Pandora's box

The Honourable Justice CS Karnan is in the news again. [caption id=“attachment_3194870” align=“alignleft” width=“380”]  File image of CS Karnan. Bar and Bench[/caption] This time, the imprisoned former Calcutta High Court judge had his request for early hearing of his bail plea denied by a division bench of the Supreme Court. This saga doesn’t seem to have an expiry date and one doubts if it will die down any time soon. As the first Justice to be charged with and convicted of contempt of the Supreme Court, Karnan will take his place in India’s legal history. For those not in the know, a quick primer: The apex court held Karnan in contempt, proceeded to strip him of judicial work and then sentenced him to six months imprisonment. Though one defers to the findings of the Supreme Court as to contempt, one point needs to be considered: Is contempt the best way for the Supreme Court to enforce discipline? Each high court gains its authority from the Constitution and the respective statute under which it was constituted. The Supreme Court also gains its powers from the Constitution. In terms of the judges though, it is not the case that the Chief Justice of India may exercise disciplinary powers over the high court judges. The Supreme Court’s disciplinary jurisdiction does not extend to the judges of the high court, they are not subordinate to it in this aspect. The Constitution is clear: If you want to get rid of a high court judge, you have to go through the process of impeachment. In effect, Karnan was impeached. Though the apex court didn’t remove him from office, one would think it would be difficult to be a judge with no work and one doubts if prison officials would find themselves in a position to make a makeshift court room in the prison barracks. The Supreme Court, by invoking contempt jurisdiction against a sitting judge has opened what could possibly be a Pandora’s box. The high court and Supreme Court judges are equal. The Chief Justice of India is first among equals. This has been an accepted proposition. But if the Supreme Court is now opening the door to disciplining members of the higher judiciary by invoking contempt there can be many outcomes: 1) High courts have their own contempt powers. An order by a high court judge against another high court judge invoking suo motu contempt proceedings is now a real possibility. The judge may not be from the same court, but another high court. 2) High courts can also theoretically now issue contempt proceedings against Supreme Court judges. As per the rules, when it comes to contempt of court, no person is above the law. 3) Supreme Court Justices can now initiate contempt proceedings against other apex court judges and possibly even the Chief Justice of India. How these contempt proceedings will resolve themselves is anyone’s guess, however, the door has now been opened. Which is perhaps why systems all across the world don’t allow judges to discipline other judges but leave it up to the appointing authority. Parliament has the power to remove a judge. This power can be exercised after what is a full trial before the Rajya Sabha. The judge has a right to present a statement in his defence, have counsel, submit arguments, and the Parliament orders are subject to judicial review. But if a judge of the higher judiciary is facing contempt, he or she has few avenues.  The institution determining the legality of contempt will, more often than not, be the same institution that accuses the judge of contempt. Which makes contempt the most tricky way of enforcing judicial discipline. The contempt powers of the apex court and the high courts are wide, derived from the Constitution and their functions as a court of record. This makes it important to find a way to ensure that these powers are exercised appropriately and within guidelines. Stripping a judge of his powers and sending him to prison is effectively impeachment via the exercise of contempt jurisdiction. It is a new thing for the Constitution. Something the framers didn’t contemplate. There must have been a better way of dealing with the Karnan situation. A trial before Parliament may not only have seemed more fair to Karnan’s supporters, but would have perhaps saved the law from this labyrinth of judges charging each other with contempt. How this situation will be resolved remains to be seen.