Professor S.N. Misra

The Supreme Court has slapped six months of imprisonment on Justice C.S. Karnan of Calcutta High Court for committing contempt of the judiciary. This is the first time in  judicial history that a sitting High Court judge will be jailed for contempt. The court has also said that the media should not publish any further statements made by him. To quote the CJI “We are not looking at him as a judge. He is a citizen. This case has no colour. We cannot distinguish him from others just because he is a sitting judge”. Indira Jaising, a senior advocate in the Supreme Court, while deprecating the conduct of justice Karnan has suggested that the Supreme Court should have ideally referred the case to government of India for initiating impeachment proceedings under Article 124(4).  Sri K.K. Venugopal, senior advocate, also appealed to the court that justice Karnan should be allowed to retire on June, 11 and then be tried. The court was unwilling to consider this.

It would therefore, be interesting to look at the provision of the Constitution in this regard and important cases which have been dealt by the Supreme Court in the past. Article 129 postulates that the Supreme Court, besides being a court of record, shall have the power “to punish for contempt itself.”  In Delhi Judicial Service Association vs State of Gujarat (1991) case the court has clarified that the power to punish for contempt under Article 129 is not confined to its own contempt but extends to all courts and tribunals subordinate to it in the country.  The court has further clarified in the Supreme Court Bar Association vs Union of India (1998) that the contempt of the court jurisdiction is a special power which would be used to “uphold the dignity of the court, the majesty of law and to keep the administration of justice un-polluted.”

The most important case on contempt pertains to C.K. Daphtary vs O.P. Gupta (1971) in which Mr. Gupta had published a booklet ascribing, bias and dishonesty against Justice J.C. Saha while acting in judicial capacity. Mr. C.K. Daphtary filed a petition alleging that the booklet has scandalised the judge.  The court tried to ascertain whether the impounded publication has a mere defamatory effect on the judge or it is an interference with a due course of justice.  In other worlds, a distinction was sought to be made between defamatory attack on a judge and contempt of judiciary as a whole. The court took the view that the publication and the scurrilous remarks incorporated therein amounted to both.

The last notable case was the contempt case against the Magsaysay award winner Arundhati Roy. In the backdrop of the Narmada Bachao Andolan conducted by Medha Patkar where the Supreme Court did not agree with the contention for stopping the height of the dam which subsequently submerged thousands of tribals, Ms. Roy wrote “the court disposes a disturbing willingness to issue notice on absurd and despicable petitions”. On the court notice to her she observed that the notice “was intended to silence criticism and muzzle dissent”. The court was of the view that her writing did not fall in the category of fair criticism and sentenced her to one day jail.

One of the critical issues that emerges from the case is the perceived failure of the collegium system. Interestingly all the judges including the then Chief Justice K.G. Balakrishnan had strongly recommended the case of Justice Karnan.

It may be recalled that in the S.P. Gupta vs President of India (1981) case Chief Justice P.N. Bhagwati had strongly recommended that the role of the judiciary is advisory and the executive decision in selection of judges would be paramount. This was subsequently changed in the Supreme Court Advocate on Record Association vs Union of India (1993) case where the collegium system was mooted as per which it is the Chief Justice of India with five senior most judges who decide all the selection of judges to the high court and the Supreme Court.  The system has been intermittently criticised as promoting nepotism, favouritism and being an opaque system. While overruling the NJAC amendment to appoint the judges, the court had observed that the existing collegium system would need to be more transparent.

It may be recalled that the national Committee to Review the Constitution (2002) had recommended that there should be a broad based committee headed by the Chief Justice with the Law Minister and eminent person nominated by the President of India which should supplant the collegium system. It is unfortunate that the judiciary has not considered a broad based structure for selection of judges with inputs from the civil society.

Its consideration of executive as an interference on independence of judiciary is clearly against the concept of separation of powers, which is a “basic feature” of the Constitution.

Dr. B.R. Ambedkar during the course of the Constituent Assembly debates had strongly recommended that the selection of judges should be on the lines followed by the U.S. government where the judges are selected based on a merit and subsequently examined by the US Senate Judicial Committee. The Senate proceedings for selecting the judges are open for public viewing and have thus gained enormous credibility about the integrity of judicial institution in the USA.

We need to seriously consider introducing a more transparent system of selecting judges, where merit would be the uppermost criteria, rather than perpetuating nepotism.  The present case not only unmasks judicial anger but also reflects a tendency to be self-righteous amongst the judges.

[Professor Misra is a former Joint Secretary to Government of India and now Dean of School of Management, KIIT University, where he teaches Constitutional Law. Email:, Phone: 7381109899]