Supreme Court & Justice Karnan – Judging the Judges!

A bench of five or more judges is constituted, under Article 145 of the Constitution of India, for the purpose of deciding a case involving substantial question of law as to the interpretation of the Constitution. In Justice Karnan’s case it is digressing into areas it need not move to.

It is indeed odd that seven judges should, sitting as such a bench, be ordering medical examination of the person being proceeded against. This is more so because his behavior is not in any manner different from what was known when proceedings against him commenced. Notwithstanding the self-evident deviance and aberrancy he was yet considered, by the very bench, as possessed of sufficient understanding and competence to be served with summons of the case, be heard in his defense and be further directed to file a reply – himself and not through a person taking responsibility for him – to the charges levied against him. If a person can be trusted with the ability to understand the nature of the proceedings and give rational testimony the basic test of his competence is satisfied as not to warrant his medical examination.

Medical tests have been ordered to resolve a lis a court is seized of to ensure, as was felicitously put, that “justice is not compromised to notions of delicacy”. The application of this principle to the case at hand can be the subject matter of serious dispute and in the circumstances of this case Justice Karnan has the right to refuse the taking of the test. More significantly the ordering of such a test suggests that the bench is having second-thoughts of the very propriety of proceedings initiated suo-moto by it. In any event “proved incapacity” – provided it is established in the manner prescribed under Article 124 – is a ground for impeachment not contempt and will, in fact, negate the charge of contempt. Proceedings will have to be kept in abeyance pending resolution of doubts about mental capacity. Inexplicably, however, the Supreme Court not only reiterates that Justice Karnan, the very person whose competence and capacity it doubts, should file a response but further records that should he “not choose” to file “it shall be presumed he has nothing to say.” How can freedom of choice be conceded to one who cannot be trusted with that responsibility and how can his failure to exercise that choice be deemed an intelligent exercise of discretion when an apprehended defective intellect is the reason for constituting the Medical Board?

The Supreme Court has, under the constitutional scheme, a special role in the administration of justice and is obligated to take steps to ensure free and fair administration of justice throughout the country. This explains the unusual step of constituting a bench of seven judges proceeding with suo moto contempt proceedings against Justice Karnan. Curiously the notice issued had not set out the charge against Justice Karnan and the contempt itself is described as “civil” though the reason for the proceedings is not violation of any order the court may have passed but letters addressed to the Supreme Court (which fact is not mentioned in the order issuing notice.)  This discrepancy, however, does not affect the proceedings in any substantial manner as Justice Karnan, on appearance, appeared aware of the reason behind the proceedings and the right to proceed in contempt inhering in a Court of Record, the Supreme Court was exercising power under Article 129 and not under the Contempt of Courts Act, 1971. It would however have been appropriate if the not made itself vulnerable to any criticism about the manner in which it was proceeding more so because the jurisdiction it was exercising was of contempt and that too suo moto.

Ideally Justice Karnan should have contested the proceedings and presented whatever objections he had in law to the process – which would also served as a precedent checking any future misuse of such a power. His willful refusal to participate should, nevertheless, not have deflected the court from the purpose behind the institution of proceedings to make forays into areas irrelevant to the controversy. The bench would have been better advised to immediately proceed to decide the issue whether in exercise of its powers under Article 129 notwithstanding the bar against “removal” from office except in the manner prescribed by Article 124 (4) of the Constitution the Court could yet order that Justice Karnan “refrain from all handling judicial or administrative work” that is remove his adjudicative capacity which alone could make him act as a judge. Related issue would be whether judges of courts of record could be proceeded against under contempt if they interfered with the legal process (an issue which proceeded sub-silentio in Ramaswami’s case) or exercised power illegally (which distinguished Justice Karnan’s case from Prakash Chand’s case) and the limits of public interest restriction against initiation of proceedings against a Judge of a Court of Record – an issue which will always remain key in every contempt proceedings instituted against any superior court judge. However more than two months have elapsed and Justice Karnan will retire in a few weeks from now!

Even otherwise the question would yet remain how any order passed would be executed. While a method to take action against judges, apart from the process of impeachment, an oppressively cumbersome process made worse by the intrigue and artifice of the political process would be a welcome, making the method work would be the real problem. We will eventually return to the very point from where we started – ordering the withdrawal of judicial work – and the judge remaining defiant – apart from any other punishment devised to suit the contempt – the carrying into effect of which would be fraught with rather dangerous consequences as the judiciary would be bound to take the help of the executive to make any order effective which is bound to compromise its independence.

A public spat between judges with each side ordering medical examination of the other and issuing warrants demeans the judiciary as an institution. The fact remains Justice Karnan is responsible for this situation and by choosing not to appear and contest the notice has shown he is not serious about the allegations made by him being subject to rigorous scrutiny as to show they are not fanciful and frivolous. He is, in the circumstances, clearly liable to punishment but the fact is he is about to retire and more than two months have been spent by the Supreme Court without making any substantial progress only generating adverse publicity ridiculing the judiciary. Moreover we need to proceed with caution thinking out the consequences of any action lest this case becomes a precedent that returns to haunt the judiciary later.

Justice Karnan already stands discredited. Mr K.K. Venugopal’s suggestion of letting him fade into retirement ought to be seriously considered by the Supreme Court. The existence of the power in the Supreme Court has been demonstrated. It may not be worthwhile to exercise it in the instant case.

Mr Chidambaram’s “Polarisation”: Blame-Game & Half-Truths

The country, said Mr Chidambaram, is “most polarised” comparing it to the time of partition of the country.

The comment was seemingly uttered with a sense of dismay at what was perceived as a deteriorating situation in the country.

Lose comments deny dignity to serious concern. Mr Chidambaram’s comment is a case in point.

Polarisation is understood as extreme divergence in opinions with distance between the extreme points of view so large as to deny any possibility of convergence. One cannot, however, talk about “polarisation” without addressing the issue of freedom of speech.

A misuse of the freedom implicit in mischievousness, distortion or obscurantism closes door to dialogue frustrating the purpose of communication and contributing only to noise and not public discourse.

Then again, not every polarisation of views is bad. In dealing with the subject of polarisation, to make the discussion meaningful, one must specify the issues on which there is extreme disagreement and further consider whether disagreement on those issues can justify apprehension of a larger discord as can threaten cohesion in society.And in dealing with the latter both discord and justification need to be considered. An unjustified discord will create polarisation only to create disorder and law will have to intervene to clam down on it.

Mr Chidambaram addressed neither the issue of abuse of freedom of speech nor specify what issues he had in mind while commenting on polarisation and did not also dwell on the question whether disagreement on those issues is justified as to label the matter disagreed with dangerous.

The comment was only an appeal to emotion and is mere prejudice parading as fact.

The immediate context for the comment was the JNU controversy. JNU became controversial because of comments about “judicial killing” of proven terrorists and emphatic demands of “self-determination” of Kashmiris. The former means courts in India murder and latter questions the integration of Kashmir into India.hero even for students

Strangely Mr Chidambaram mentioned partition of the country not independence which accompanied it and framing of the Constitution which followed establishing rule of law in the country with courts as its guardian and Kashmir as part of its territory.

It were those wanting partition who demanded Kashmir and rejected secular foundation for the new state they created. Mr Chidambaram’s comment shows his affinity with this group rather than those who fought for and established an independent India.

If an Indian objects to secession and to the undermining of a system entrenched constitutionally it is the point of view that the Indian opposes which is dangerous. As wide a disagreement as possible with this view is imperative for the integrity of the country. And using this as an instance of “polarisation” is mischievous.

Similarly if “beef” moves from being food to political weapon consumed not to satiate physiological need but make a political point the intent clearly being to spite another not satisfy oneself vociferous opposition is not only important but necessary for such hate will  feed itself till it consumes the country. Why no comment on celebratory beef binging? Is polarisation bad only if it entails a disagreement with your point of view?

Who made HCU debate Dalit issue? Afzal was a hero even for students of HCU and judicial killing flavour of the debate. Is this a discipline issue or Dalit issue?

And while the Asura tribe, constituting a minuscule part of the population may celebrate Mahishahsura, The Times of India reported, “Today, few Asurs, especially the younger generation, know who Mahishasura was and what he means to their community and the activists hope to change that. Soon after the gathering in Purulia, the tribals will congregate at Jawaharlal Nehru University in New Delhi on October 26 to raise their voice against the “centuries-old systematic repression of their culture and religion”. The students of JNU are more aggrieved than the tribals whose cause they claim to espouse to create a fractious environment where none exists. Who then is moving to the polar extreme and in this deliberate movement is there not the wilful  intent to create disturbance and will this intent not be impervious to resolution as a dispute has been raised for the sake of raising it without there being a reason for the same? Is this, again, not an issue of mischievous use of speech and can a legitimate objection to it be called a sign of polarisation?

Mr Chidambaram said, “University is a place where I have a right to be wrong!” If you claim such a right how do you justify rights or protest wrongs and use the medium of interaction to find common ground necessary for an ordered existence. And with such an attitude you, not those who oppose you, are responsible for the polarisation you claim to be so worried about.

The polarisation arising out of such abuse of free speech is not bad. The discord which follows exposes not what is wrong in the societal apparatus but who the miscreants in society are and the regulatory apparatus is then meant to intervene in such situations to discipline such reprobate behaviour. This is a sign of a functional not dysfunctional system. The disagreement on some issues is imperative for preservation of a polity and where there is justification for disagreement the disagreement cannot be cited as being pathological.

There is a contrary point of view to your world view Mr Chidambaram.That point of view is now equally vocal. Yes there is disagreement. But that is only half-truth. It is the unwillingness to see the reason for the same which is now causing the polarisation. Introspection will be better than playing the blame-game.

 

Rohith & Kanhaiya-Of Dalits & Students

Discipline becomes a “Dalit” issue and Sedition becomes a case of “stifling students”.

Rohit was not suspended for being a Dalit but because of his protesting the hanging of Yakub Memon who was convicted for the 1993 Bombay bombings. And Kanhaiya was arrested for subversive speech which enjoys no constitutional protection and students are not exempted out of the requirement. Yet we are fed constantly with cries of injustice to “dalits” and “students“.

Does identity (being a Dalit) immunise conduct and is location (JNU campus) the sole reason for a privileged position?

It is indeed strange that while protesting social inequality a privileged position is being created in the enforced exemption from norms which are otherwise of general application.

And the cognitive dissonance – conflict arising from holding of contradictory beliefs – is replaced by doublethink – the simultaneous holding of contradictory beliefs entailing as Orwell said the repudiation of morality while laying claim to it!

Thus the very law and system disparaged in speeches and protests is invoked both by Rohith’s kin and Kanhaiya to seek protection from action and redressal of perceived grievances. Is this not hypocrisy parading as virtue which actually robs the protagonists of the moral high ground they seek to occupy?

In any event the question is not who Rohith was but what he did and the mere fact that Kanhaiya spoke in University campus will not make a subversive speech less so.

The defence of both Rohith and Kanhaiya entails deriving moralistic conclusions from evaluative premises which is nothing but a moralistic fallacy. Two illustrations will explain such a flawed approach: Dalits have been treated badly THEREFORE punishing Rohith, a Dalit, is wrong. And students need a free environment there all restraint on them is bad. Considering the opposition of this group to fanaticism such bullheaded opposition to reason is indeed unseemly and inappropriate.

And what will then happen to civic nationalism? Considering the vociferous opposition of the group to any ethnic basis of nationalism – because of the perceived threat of cultural assimilation – even civic nationalism – which deals with shared rights and deference to similar political procedures- would be endangered by such an approach  for rights will be claimed for some which are denied to others and exoneration from procedures, applicable to all, yet sought for a class. There will be no commonality of goals nor cooperative effort. With utter want of mutuality and enclaves of exclusiveness will there not be greater fragmentation of society and alienation of its members with no chance of inclusiveness or adaptability which is being invoked in the defence of both Rohith and Kanhaiya?

There is something fundamentally wrong with what is happening. Such an attitude must not be allowed to prevail. Denying both moral and civic virtues we will then move away from integration to disintegration. And this is injustice to all – not just Dalits and Students!