The verdict is out – the Supreme Court has sentenced Justice Karnan to six months of imprisonment for contempt of court. It is another matter that he was not heard before being sentenced. Let us say that Justice Karnan refused to be heard. But the Supreme Court alleged that Justice Karnan was insane, and in contravention of all known human rights jurisprudence and Part III of the Constitution wanted to subject him to a medical examination against his will. Now if Justice Karnan is insane, how can he be guilty of anything—least of all contempt of court? Alleging insanity on the part of the accuser to get out of situations is as old as hegemony and human civilisation—and psychiatry has historically been a willing collaborator with the powers that be in discrediting valid accusations of oppressions as psychosis or neurosis (for example, "hysteria" in women and homosexuality to name a few). In the present case the Supreme Court has also tried to put its entire weight in gagging Justice Karnan and the media with a diktat that his contrarian orders should not be published.
The core issues, in my opinion, are the hegemonic structure of the higher judiciary, inaccessibility, unaccountability and most importantly judicial corruption.
But this is not only getting ahead of the story, but reducing it to merely a question of technicality and administrative tussle due to lack of clarity on procedure with respect to judicial errancy. The truth is that it is much more and the truth is bitter. Why would the legal fraternity rather obfuscate the questions that this standoff between Justice Karnan and the Judiciary raises rather than address the core issues? The core issues, in my opinion, are the hegemonic structure of the higher judiciary, inaccessibility, unaccountability and most importantly judicial corruption. The tussle between Justice Karnan and the rest of the judiciary started with the former raising questions of diversity and corruption in the higher judiciary. There were moments of drama and breaches of law and protocol on both sides, but commentators and the media largely focused on Justice Karnan's missteps—which of course looks exaggerated given that he was taking on the entire behemoth that is the judiciary.
Before we proceed, let us list the exact issues that Justice Karnan flagged, in sequential order:
- Personal caste discrimination by fellow judges.
- Caste discrimination in appointment of judges.
- Irregularities in the appointment of district judges.
- False qualifications of a judge.
- Sexual assault by a fellow judge on an intern in the court premises.
- Nepotism and favoritism in the collegium system.
- Corruption among members of the higher judiciary.
A cursory look at the list reflects that this is largely the public perception of what is happening in the judiciary being articulated for the first time from within.
When Justice Karnan first raised issues of caste discrimination and irregularities against his colleagues in the Madras High Court and it came to the notice of the Supreme Court, his allegations were brushed aside and he was transferred to Kolkata. Instead, the apex court could have instituted an enquiry, giving a fair chance for all parties concerned to be heard. Not only would it have met natural justice processes, it would have given a sense of legitimacy to all further actions. If the allegations were found false then Justice Karnan would have been discredited and if they were found true it would have showcased the intentions of the judiciary to be transparent and tackle corruption. Instead the judiciary decided to ignore the issues and find a temporary solution, thus denting perceptions of its own credibility. Here we should remember that the issues raised by Justice Karnan are not isolated. With respect to corruption the former Arunachal Pradesh CM Kalikho Pul's suicide note names corrupt judges. There are also allegations by civil society groups and former judges and all of them have been ignored.
The judiciary decided to ignore the issues [raised by Justice Karnan] and find a temporary solution, thus denting perceptions of its own credibility.
With respect to diversity, lack of representation of marginalised communities in the higher judiciary especially the Supreme Court is well documented. George H. Gadbois's book Judges of the Supreme Court of India is a damning indictment of its subject matter. The court itself has acknowledged the need for a more transparent process for appointment of judges in the NJAC case. So, Karnan was not raising anything new—he was just the first sitting judge to do so, in the process giving an opportunity to the judiciary to address these issues in consonance with democratic propriety and grace. The question of caste discrimination within the judiciary cannot be wished away by pretending that it does not exist. It is a badly kept secret that the only reason that K. G. Balakrishnan became the first Dalit Chief Justice of India was because of the insistence of K. R. Narayanan in elevating him at a crucial point of time.
But what happened instead was the enactment of a long drawn unnecessary drama, creating a spectacle and subverting the Constitution, and ending with legally untenable mutual convictions. If it was only about Justice Karnan being a difficult person to work with, he has only one month left to retire. But of course it is about more—it is about sending a message. If the message is that dissent within the judiciary will not be tolerated and that everything within it is above board, then it is not difficult to draw a parallel with the specious argument that abuse cannot happen within families. All that the drama has done is increase perception of lack of transparency in the judiciary.
Let us not be ostriches and pretend that an institution which is largely dominated by upper caste men does not have any patriarchal and caste biases.
The sum total of irregularities, illegalities and disregard for Constitutional provisions by the Supreme Court with regards to this sentencing of Justice Karnan is scary. These are well captured by both Usha Ramanathan and Indira Jaisingh in Scroll and LiveLaw respectively and there is no need to address them again. But, what I would like to concentrate on is the allegations of caste discrimination that Justice Karnan claimed—the resistance to which set this entire drama rolling. We might never get to know the truth behind these allegations as they are not likely to be investigated. But what we do know is that when allegations were raised against an upper caste judge—Justice Soumitra Sen—an enquiry was set up and the findings of the matter were then duly referred to Parliament in accordance with the law. This disparity sends very troubling signals.
The second issue that disturbs me is that almost all the commentators on this issue have brushed aside the allegations raised by Justice Karnan based on the way he chose to address his grievances. This is not to defend Justice Karnan—he has proven himself more than capable of doing that and taking on an institution like the Supreme Court—but what are the grievance redressal mechanisms in place within the higher judiciary for women, Dalits or any other marginalized sections? Let us not be ostriches and pretend that an institution which is largely dominated by upper caste men does not have any patriarchal and caste biases. Another sitting district judge K. B. Gangeyudu had filed a writ petition in the Supreme Court regarding caste discrimination within the judiciary in 2015. Not only was his petition dismissed by a bench comprising the former Chief Justice Dattu and Justice Arun Mishra, denying him the relief of writ under Article 32 saying that it was a personal matter, but he had to face further humiliation for raising the issue. The constitutional mandate for non-discrimination was ignored completely.
One still doesn't know on what note this saga will end. But one thing is clear—the judiciary can ill-afford to avoid introspecting on core issues that have been raised by Justice Karnan's case unless it wants to risk further erosion of its credibility, especially in these times when its autonomy is under direct threat! In this battle between Justice Karnan and the Supreme Court of India, it wasn't Justice Karnan's lack of decorum or actions that dented the dignity of the judiciary, but the reaction of the Supreme Court! To paraphrase K. G. Kannabiran, as quoted by Usha Ramanathan, the Supreme Court failed in its duty to uphold the Constitution!