The Curious Case of Justice Karnan

BRIEF FACTS
On January 23, 2017, Justice Karnan had published an open letter to the prime minister naming an
initial list of 20 sitting and retired Supreme Court and High Court judges, accusing them of
corruption Taking exception to a senior High Court judges conduct, the constitution bench of the
Supreme Court brought Justice C.S. Karnan's seven-year career to a halt on Wednesday.

A seven-judge bench of the Supreme Court has directed Justice Karnan presently with the
Calcutta High Court to appear before it on February 13, 2017 to speak out before the apex court
initiates contempt charges. In a first where a judge has been served a show cause notice pending
contempt charges, Justice Karnan has been pulled up for making comments against members of the
judiciary.

On January 23, 2017, Justice Karnan had published an open letter to the prime minister naming an
initial list of 20 sitting and retired Supreme Court and High Court judges, accusing them of
corruption. In it, Justice Karnan had suggested that they be investigated through interrogation by
central agencies.

The bench, led by Chief Justice of India (CJI), Justice JS Khehar, asked Justice Karnan to appear
in person and answer the charges and have stripped him off his administrative and judicial powers till
then.

In what also appears to be a first, Justice Karnan will appear in person to defend the contempt case
after the Supreme Court allowed him to do so by a January 5 order.

The Attorney General of India Mukul Rohatgi argued on Wednesday that the judge should be made
an example of to protect the judiciary.

Justice Karnan has had a controversial career since his appointment in 2009 and came to notice last
year when he stayed a court order against his own transfer from the Madras High Court. Then chief
justice of Madras HC, Justice Sanjay Kishan Kaul, as well as his colleagues had found it difficult to
work with Justice Karnan.

Appointment
CS Karnan was a government counsel, with 25 years of experience as a lawyer, when his name was
recommended by Justice (retd) AK Ganguly, then the chief justice of Madras High Court. Other
members of the collegium did not know him well and some even remarked that he had not appeared
before them. They had accepted the appointment based on Justice Gangulys recommendation, which
appears to have been made to accomodate a Dalit judge in the senior judicary.

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As reported in The Hindu, Justice Ganguly has since said that he doesnt remember how his name
came up in the first place. Justice Ganguly said that he appointed Karnan because he represented a
certain community that should be represented in the choice of judges.

Justice Ganguly had also said that he did have a soft corner for Justice Karnan and thought him to be
a good man, though probably misguided.

Later, Justice Karnan has himself described the collegium system as autocratic.

Controversies
In 2011, Justice Karnan had written to the National Commission for Scheduled Castes (NCSC)
complaining of victimisation by the other judges because he was a Dalit.

He invited members of the press into his chambers and held a press conference there alleging
victimisation at the hand of 4-5 of his brother judges.

The letter alleged that, at a wedding, a judge sitting next to Justice Karnan had crossed his legs to
deliberately touch mine.

Several members of the judiciary found the letter to be in poor taste when the complaint became
public. The NCSC had forwarded it to then CJI, late Justice SH Kapadia, since it was related to
members of the senior judiciary.

In 2013, Justice Karnan had passed a much-criticised judgment which created a new law. Penal law
allows a woman to approach a court when a man deserts a woman after pre-marital sex with a
promise to marry her. Justice Karnan ruled that apart from the penal law, the woman could claim
social status as his wife if the man were 21 and single and the woman 18 and single and that the
premise of the pre-marital sex was marriage.

He later went on to explicitly prohibit criticism of this order through a gag order.

In January 2014, Justice Karnan crashed into another courtroom where a two-judge bench was
hearing a PIL on selection of judges and started arguing. He launched into an outburst against the
unfair and biased selection of judges and said he would file an affidavit on the issue before that
court.

The Supreme Court described his behaviour uncharitable, ungenerous and indecorous because sitting
judges don't appear or argue before another court, least of all, at another courtroom of the court
where he himself sits. In fact, even after retirement or resignation, HC judges can only appear before
other High Courts and the Supreme Courts. Most former HC judges only practice before the apex
court.

Then chief justice of Madras HC, RK Agrawal, had asked then CJI, Justice P Sathasivam, to transfer
Justice Karnan saying that other judges were afraid of him and that Justice Karnan had barged into
his chamber hurling a volley of invectives.

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Justice Karnan hit back with another complaint to the NCSC alleging caste-based discrimination. He
also wrote to the CJI to stay the transfer request till he had proved the allegations he had earlier
made.

In August 2014, when Justice Kaul was appointed as Madras HC chief justice, Justice Karnan
launched into a one-man attack against many of the judges. He supposedly hurled accusations at the
judges, who fell silent. It is believed that the issue was again based on discrimination. 20 judges sent
a memorandum to the CJI asking that Justice Karnan be transferred since they found it difficult to
work with him.

In 2015, Justice Karnan publicly alleged that another judge had sexually harassed an intern in his
chamber an allegation that he has since been unable to substantiate.

In late 2015, he wrote a letter to Justice Kaul saying he was going on a long leave because of the
dummy cases he was being allotted.

Justice Karnan, who belongs to a Dalit community, had alleged caste-based discrimination by Justice
Kaul. He said that the collegium system preferred high caste candidates.

The Madras HC Registrar General took exception to this allegation and approached the Supreme
Court immediately. In In February 2016, the apex court transferred him to Calcutta HC.

Justice Karnan retorted and suo motu stayed the CJIs order of his own transfer, citing a nine-bench
judgment of the Supreme Court. He also directed the CJI to file written submissions regarding the
transfer. Justice Karnan had even called for a press conference inside his chambers yet again.

A bench of the Supreme Court, led by Justice Khehar (before he was appointed CJI), directed the
Madras HC to stop giving him work and eventually Justice Karnan made his way to the Calcutta HC.

In Calcutta HC, he had a public spat with Justice AK Roy, who was heading their two-judge bench.
In the Vivekananda Flyover collapse, several people had been killed when a flyover collapsed in the
heart of Kolkata. The two-judge bench had refused bail to the accused. Later, Justice Karnan
changed the order from his chambers, allowing bail to the accused. The then chief justice of the
Calcutta HC had to remove Justice Karnan to a single-judge bench to hear education matters.

Contempt

A similar case of contempt was initiated by the Supreme Court when lawyer Prashant Bhushan had
alleged that half of the former chief justices of India were corrupt. Served a notice, Bhushan filed an
affidavit with evidence corroborating his statement. Truth is a defence in contempt of court matters.

Most recently, Justice (retd) Markandey Katju was pulled up for criticising a Supreme Court bench.
He had made comments in social media on a murder case.

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The Supreme Court asked him to appear and explain his comments and later issued him a contempt
notice. AG Rohatgi had argued that the comments may have been intemperate but not necessarily
contemptuous.

Veteran jurist, Fali Nariman, appeared on his behalf and Katju tendered an unconditional apology.
Since then, his comments on social media have been more measured.

While the matter was being heard, Nariman issued a temporary gag order on Katju, who stayed
noticeably absent from social media sites for a while.

In Justice Karnans case, the allegations have been made through a public letter. He will have to
produce some evidence regarding his allegations against topmost judges. One of them is Justice
Sankay Jishan Kaul is a sitting SC judge. Another is Justice Ibrahim Kalifulla, who retired in July,
last year.

COMMENT

The problem of "who will watch the watchmen" sometimes seems to afflict the judiciary in India.
While judiciary oversees the rule of law in the country, nobody is there to point out their own
transgressions.

Some of the problems facing judiciary in terms of appointment and accountability are:

the Collegium system has failed in ensuring suitability of Judges, as shown by the latest
case of misdemeanour by a High court judge.
we are yet to get to a the final Memorandum 0f Procedure which is to replace the
collegium system.
There have been allegations of nepotism (the "uncle system") with favorable judgements
being given.
There are also cases of bribery and other impropriety.
Internal grievance mechanisms being closed to outsiders are an opaque instrument in
enforcing probity among judges.
-There is also a general lack of accountability in efficiently and effectively callrying out
its function. This is seen in the huge pendency of cases.

The result of all this is that the jduiciary today faces credibility deficit. And in a democracy it is of
utmost importance that judiciary be respected.

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