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The whole unsavoury events involving Justice Karnan and reactions by the Supreme Court along with a gag order on the media not to report his...

The whole unsavoury events involving Justice Karnan and reactions by the Supreme Court along with a gag order on the media not to report his statements has sullied the judiciary’s solemnity. It was unprecedented also because the apex court, perhaps thinking that it was left with no choice, in its anxiety to uphold its dignity, acted against the errant judge. In the process, however, it set another benchmark, an unhappy one. The principle of freedom of expression is a critical freedom in any democracy. This gag order on media was tantamount to prior restraint­


From passing arrest orders against the Chief Justice of India and other Supreme Court judges to playing hide and seek to evade arrest, from outright defiance to repeated pleas to seek suspension of the apex court’s warrant and from playing the caste card to charging fellow-judges with graft and more – the country has witnessed an unseemly show by an honourable Calcutta High Court judge.

Unprecedented, it is embarrassing to anyone who values supremacy of the rule of law and the instruments and institutions that strive to ensure that rule.

It is unprecedented in that a serving judge is at the centre of a self-generated controversy that compelled the apex court to order his medical examination. Bizarre though, the clear implication of the order was that he was mentally unstable. The judge declared that he was indeed not so, and as if to prove that, he retaliated with an arrest warrant against the entire bench that had passed that order.

This has sullied the judiciary’s solemnity. It was unprecedented also because the apex court, perhaps thinking that it was left with no choice, in its anxiety to uphold its dignity, acted against the errant judge. In the process, however, it set another benchmark, an unhappy one.

Add to that the apex court’s gag order directing the media not to publish Justice Karnan’s orders and directives. Whenever free speech has been challenged in India, the apex court has stood by the principle of freedom of expression, a critical freedom in any democracy.

This gag order on media was tantamount to prior restraint. The media abided, but sections of it remain perhaps the only ones to publicly take a stand through editorial comments on the unseemly drama that is still on.

Nobody can be happy about the way events are unfolding. But nobody seems to know how to stem the public bickering.

A thought, not original though. Justice Karnan is due for retirement on June 12. This was just four weeks away when the seven-judge bench headed by Justice J S Khehar issued the warrant of arrest. Could the Supreme Court bench not have ignored the provocations, waited out the period and then acted? Once out of office and without the immunity that the judgeship accords him, Karnan could have been prosecuted as an ordinary citizen.

The highest judiciary in the land could then have issued a clear warning and set an example.bviously, Justice Karnan knew this and knows it now. This may explain his provocative talk and orders. This may also explain his reported travel from Kolkata to Chennai, amidst conflicting reports that he had crossed the border and moved to Nepal or Bhutan. He was untraceable till the Supreme Court was dramatically confronted by a lawyer bearing Justice Karnan’s permission to represent him and seeking suspension of the order.

Well-versed in law, he has a record of controversial speak and orders even when he was a Madras High Court judge. When, in a move to resolve the crisis he was transferred to the Calcutta high court, he issued a suo moto order against his own transfer before sense prevailed. Since transfer, his actions are sharper and more daring. The type of legacy he will leave on retirement is debatable.

The apex court’s action, of giving in to his provocations also needs a thought. With nothing except its order on record, it is difficult to deduce why it passed the order. One can only hope and say that it was done in the best interest of law and justice.

There seem no winners in this tussle, but any victory would surely be a Pyrrhic one. Of the losers, the apex court and the judiciary as a whole found their image sullied.

Court as an institution and the people presiding there are presumed to be a cut above the rest with awesome power over us. We hold them in awe and seek justice from them, whether in individual or group disputes and even wrongdoing from the mighty State. And now this episode is diluting that courtesy and reverence.

Even if one sets aside his ‘aberrant behaviour’ and his “flinging irresponsible charges of corruption against several High Court judges,” one cannot gloss over the perception created that the judiciary’s Augean stables need cleaning. Some of the cases of corruption involving those who are high profile make one believe what the judge has been trying to put across.

With his confrontation with the Supreme Court, Justice Chinappa Vishwanathan Karnan, the Calcutta High Court judge, may have unwittingly helped strengthen the stand of the Narendra Modi government on the process of appointment of judges. Questions are being raised on how someone like him could be appointed a judge in the first place.

The government wants to make the procedure more transparent, cohesive and representative. It had been insisting that the current system must be changed to include the government representatives in the selection process. The stand the government has taken is that under the current system, judges with ‘dubious’ or even ‘anti-national’ nature may get appointed.

Under the prevailing ethos, however, the term “anti-national” can be applied to exclude anybody the government extended political arm desire. On the other hand, the Supreme Court and senior judges hold the view that the government may block appointments recommended by the collegium, comprising the Chief Justice of India and senior most judges of the Supreme Court, and bring in judges who are either politicised or those who can pull strings.

During the entire tenure of Chief Justice T S Thakur, ministers publicly joined issues. The stalemate has also led to the government sitting over the judiciary’s proposal to raise the age limit of judges from 62 to 65 years and withholding a larger number of judges’ appointments causing vacancies in various courts. The issue has only somewhat calmed under Justice Khehar’s stewardship, but without a resolution. And he is due to retire in August.

The government can now make an example of Justice Karnan as a poor choice by the current system. But Justice Karnan is not the first and will not be the last of the judges to be insinuated this way. Not just the current government at the Centre (whatever its stance on the issue), most past governments as well, and parties across the political spectrum have been guilty of pushing their politicos and sympathisers in judicial offices.

Today, Justice Karnan is being accused, with ample justification, of playing the Dalit card, accusing one and all of targeting him because of his caste. Actually, this has been played out repeatedly in the case of judges at all levels and not just judiciary, in other areas of public life.

The awkward situation has tilted towards the absurd and should have been ended by some sort of third-party arbitration. However, it has now become a cause celebre with some Dalit groups jumping on the bandwagon, alleging racism and prejudice, saying he has been treated as such because he is of a specific caste.

This caste angle is always dangerous and one cannot see Karnan backing off. Instead, he will probably become more hostile and continue to make stronger and more personal accusations. The way in which things work in India, today, Karnan may be turned into a folk hero and lionised.
Caste remains the bane of our public discourse. Hence, while a cohesive, transparent system of judicial appointment remains a key part of judicial reforms, who will reform our mindsets, our social and our political biases?

One is reminded of that mythological story of only one who has never sinned ought to be the first to cast the stone at the guilty. Do we have such a person among us?

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