May 8, 2017 12:15:34 am
In dealing with one of its ilk, Justice C.S. Karnan, the judiciary is faced with an unenviable task. The case before the Supreme Court is more complex and daunting than any of the difficult cases it handles on an almost daily basis. Dealing with a challenge to an amendment of the Constitution would seem much easier. Justice Karnan is retiring next month. Keeping this in mind, K.K. Venugopal suggested to the court that he be allowed to retire without proceeding any further against him. This was both pragmatic and compassionate. The only problem with the soft option would have been that the court would have drawn flak for being mild with its own, while using the stick with others. The attorney general (AG), Mukul Rohatgi, commended a more muscular approach. Having preferred the approach suggested by the AG, the further course directed by the court on May 1, namely a medical examination, was both inevitable and unavoidable.
The suo motu notice which was issued by the SC to Justice Karnan on February 8 was an exercise of the court’s power under Article 129 of the Constitution to punish for contempt of itself. Justice Karnan has as much of a right to defend himself as any other alleged contemnor. It is in the course of the disturbing stand and conduct of the judge that the court entertained a doubt about his fitness to defend himself. If he is, in fact, not fit to do so, any order passed against him, whether after hearing him or ex parte, would be in grave breach of the rules of natural justice. And so, the court had to satisfy itself about his capacity, which could only be done by a medical examination. However, the court contradicted itself by simultaneously giving Justice Karnan time to file a response to its notice within a week failing which “it shall be presumed that he has nothing to say in the matter”.
The decision of the SC to direct medical examination has been assailed on the basis of the right to dignity flowing from Article 21, the court’s own judgment on narco-analysis, the provisions of the Mental Health Act, 1987 and the yet to be enforced Mental Healthcare Act, 2017. These criticisms fail to appreciate that we are dealing with an entirely different situation here. A constitutional power is being exercised. As part of its duty to ensure procedural fairness in the exercise of such power, the court has to ascertain the judge’s capacity to defend himself. But the court set an unrealistic time-frame for the medical board to carry out its assignment. This has now become academic with Justice Karnan courteously refusing a medical examination. It has also turned predictably complicated with the judge raising an alternative contention that the consent of his “guardians” was required.
The consequences of the refusal of consent, and the need for a guardian’s consent are themselves matters of argument. The SC is pressed for time, since it has only two working days before the summer vacation. Justice Karnan will retire by the time the court reopens in July. Contempt proceedings against a retired judge, though legally tenable, will be absolutely pointless.
In 1964, the Supreme Court faced an embarrassing situation concerning the health of a sitting judge. The sad story is told by India’s first attorney general, the Late M.C. Setalvad, in his memoir My Life: Law and Other Things. Justice Jafar Imam, a senior sitting judge of the SC had fallen ill and had not sat in court for a few months. Though he returned to work, it was felt by both judges and lawyers that he had not been restored to his original powers and that he was not really competent to discharge his duties. It appears that the outgoing chief justice, B.P. Sinha, called Setalvad and the then-attorney general, C.K. Daphtary, for a meeting where the next senior-most judge, Justice P.B. Gajendragadkar, was also present. They discussed how the matter could be resolved, and then Daphtary and Setalvad met Prime Minister Jawaharlal Nehru to seek his intercession. Nehru told them that the government already had a medical report which indicated that Justice Imam was not fit to discharge his duties. He assured them that it would be possible to bring about his retirement without moving Parliament. Nehru succeeded in persuading the judge to resign. Those were happier, trusting times when the judiciary was not inhibited about seeking the PM’s help to solve an in-house problem.
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