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.

COURT, CONSTITUTION,CHAAL-CHALAN & ARUNACHAL

“Status quo ante as on 15.12.2015” was the order passed by the Supreme Court in the Arunachal Pradesh case.

Tuki should have been the Chief Minister of Andhra Pradesh.

But Tuki resigned.

Pema Khandu instead shall be the Chief Minister.

Pema Khandu however was sought to be disqualified by the Speaker who was acting in tandem with the Chief Minister Tuki and this was the reason for the Governor to pass his Order of 9.12.2015  which was set aside by the Supreme Court to order status quo. But Khandu not Tuki will take oath as the Chief Minister.

The Supreme Court said the Governor was wrong. But the Supreme Court also said that the Speaker was wrong. So Pema Khandu could not be disqualified. But if Pema Khandu could not be disqualified how could the Governor’s Order against the disqualifying be wrong? And if the Governor’s Order was wrong and the Speaker was right Khandu could not become the Chief Minister!

The Supreme Court felt Governor could not have exercised discretionary powers outside constitutional sanction. However Tuki admittedly (as Khandu’s becoming Chief Minister itself shows) did not enjoy support of the support majority in the Legislative Assembly. It was for this reason that the Speaker locked up the Legislative Assembly itself and did not earlier respond to any communication from the Governor aside from combining with Tuki to threaten the Governor at his residence.  How is the foisting of Tuki who lost confidence of the Assembly which could not be demonstrated in the Assembly because the Assembly itself was locked aside from resorting to extraconstitutional means against a high constitutional functionary constitutionally sanctioned?

Did the Governor act at his whim (which is not constitutionally sanctioned) or “under the Constitution” which is? If those (the Chief Minister and Speaker) who have to comply (by responding to messages of the Governor and holding the Assembly Session as mandated aside from taking law into their own hands) choose to defy is the Constitution is the Governor supposed to acquiesce in the illegality and gross impropriety and not enjoined to act correct a wrong which would otherwise be un-redressed?

Kalikho Phul was the Chief Minister replaced by the Supreme Court and Tuki placed in the saddle. Phul supports Khandu not Tuki and with is support Khandu not Tuki is the Chief Minster and Khandu himself had supported Phul when the latter was Chief Minister. Phul too was sought to be disqualified by the Speaker which was the reason why the Governor passed the Order and sent the Message both of which were set aside by the Supreme Court.

Now both Khandu and Phul are part of the ruling dispensation and Tuki is out abandoning new allies and invoking the old ones.

Is this the case of politics stumping both law and values and has the “whim” of the Governor been vindicated not the “reasoned order” of the Supreme Court?

The Case for KOHINOOR

The statement made in the Supreme Court of India on the Kohinoor diamond is astonishing and is contrary both to history and law.
Kohinoor was part of loot not “gift” and the very circumstances surrounding the Last Treaty of Lahore by which it is claimed that the diamond was ceded to the Queen of Victoria – the Last Treaty of Lahore was signed immediately after the Second Anglo-Sikh War and Duleep Singh who handed over the diamond was but a child – showed that the “gift” was anything but voluntary! And the law too permits the making and enforcing of the claim for return of Kohinoor to India.
In Resolution 3187 of 1973 The General Assembly, deploring removal during colonial or foreign occupation of objects d art, declared that  “the prompt restitution to a country of its objets d’art, monuments, pieces, manuscripts and documents […], is calculated to strengthen international co-operation inasmuch as it constitutes just reparation for damage done”.
The Resolution recognises the customary rule of prohibition against the use of force recognised in several instruments of international law commencing from the Final Act of the Congress of Vienna of 1815 to the Hague Conventions, UN Charter and the UNESCO Convention of 1970 and subsequent developments.
Opponents of the restoration of cultural artefacts rely on the fact that East India Company was a private corporation and India was not a colony of the British at the relevant time. They also rely on the principle of inter-temporal law according to which the issues should be assessed not on the basis of existing international rules but law in force at the relevant time.
Neither submission can prevail.

The site of the Parliament of UK has a section Parliament and Empire. It records that East India Company Loan Act and the East India Company Regulating Act made it possible for the government in Britain o extend a loan to the Company in exchange for recognition of the British state’s ultimate authority over the Indian territories.It leased to the Company continued political control of its Indian territory in exchange for a payment of £40,000 every two years. It also established the post of governor-general who, with a council of four members, was to have overall authority over the Company’s territories. More government control came with the India Act of 1784, under Prime Minister William Pitt. This created a committee of six government appointees, known as the Board of Control, who were to monitor and direct the Company’s policies. The government was also to have the final decision on the Company’s nominations for its officials in India. This and a further new law passed in 1786 greatly increased the authority of the governor-general over other Company officials. The ultimate control therefore lay with the government itself and liability cannot be disclaimed on the ground that East India Company, which in any event was established by Royal Charter, was merely a private company.

The inter-temporal principle cannot apply to human rights obligations. Cultural artefacts are part of the nation’s heritage and constitute its identity and the right to this cultural patrimony both tangible and intangible is basic to human dignity and indispensable for social and cultural progress. The very moral dimension of it makes it a human right. The instruments dealing with this subject, therefore, could not be said to define the norm but merely declared what already existed as an autonomous and binding principle.

It is sometimes also said that there can be competing claims by the Iranians or Afghans whose rulers held the diamond at different times. The diamond however came from the Kollur mine in Andhra Pradesh, India which was the only one to produce it at that time. As right to cultural artefacts is an imprescriptible human right and there is an obligation to return on all who may have acquired this physical cultural artefact by force the diamond has to eventually return to Indian territory no matter how many hands it may have passed through. Such artefacts are not considered private property and there is an obligation to preserve them within the territory to which they belong.

Interestingly the statement reportedly made by  in the Supreme Court was “If we claim our treasures like Kohinoor from other countries, every other nation will start claiming their items from us. There will be nothing left in our museums.” Ironically David Cameroon had used almost the same words when he came to India in 2010; he said,”If you say yes to one you suddenly find the British Museum would be empty. I am afraid to say, it is going to have to stay put”. 

It is not a question of which museum gets empty. Its the issue as to which museum is the right custodian of the artefact. And Kohinoor belongs to India.