SC is wrong in sending Justice Karnan to jail and gagging the media

In legal terms, prison may deprive a person of movement, but not his humanity or personal rights including free speech.

 |  5-minute read |   15-05-2017
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Earlier, I thought that the Supreme Court exceeded its jurisdiction in its dealing with Justice Karnan. Now, I argue that Karnan should not be sent to jail for six months and the SC should not have gagged the press from reporting anything Karnan said.

Karnan, a Dalit judge, was duly appointed a judge of the Madras High Court on March 31, 2009. He was the senior most of 13 judges appointed on that date. He came from the Bar and performed before the recommending judges. His appointment raised no eyebrows. The then Chief Justice, KG Balakrishnan, has declared amnesia over the appointment.

Test of sanity

In recent years, Karnan indulged in "conduct unbecoming", was transferred to the Calcutta High Court in 2016 where his odd behaviour continued. No one thought of impeachment proceedings, which is only the prescribed way to remove HC and SC judges. Instead, seven senior judges of the SC decided stripped him of all work, summoned him and then punished him. What an embarrassment! What an expensive farce!

The SC thought he was insane and ordered him to be medically examined. Which self-consciously “sane” person would admit to such a procedure? Karnan refused. Karnan had not pleaded insanity. The SC in fact pleaded insanity on his behalf. Had the SC already come to the conclusion that Karnan was insane?

The Court should have declared him mentally unstable to do work and reaffirmed its earlier order depriving him of work. Of course, this is assuming the Supreme Court had the power to virtually “remove” him from office which it didn’t) or punish him (which also in my view it didn’t).

karnan_051517093514.jpgPhoto: Indiatoday.in

The drama was too intense for the SC. Karnan had to be made an example of.  Now all HC or retired SC judges remain in fear lest a Chief Justice and senior colleagues of the Supreme Court found their conduct reprehensible. Though Karnan had behaved abominably, the SC violated many procedures to make an example of him.

What does this do for the independence of high court judges? Or for judicial federalism? District judges are better treated. Karnan will retire from the judiciary from June 12 and be incarcerated till November 12. Karnan has disappeared pleading for lesser punishment.

The SC added: “Since the incident of contempt includes public statements and publication of orders made by the contemnor, which were highlighted by the electronic and print media, we are of the view, that no further statements made by him should be published hereafter. Ordered accordingly.” This is against the SC’s own law.

Dangerous precedent

The Supreme Court faced a great dilemma in Gopalan’s case (1950) whether a person deprived of life and liberty by law under Article 21 conceivably forfeited his right to movement, free speech, property, right to business. The answer was convenient but not fulfiling. In the Prabhakar case (1965), Subba Rao J for five judges refused to accept a detainee lost his right to send a manuscript of his book “Anucha Antargat” (Inside the Atom) to a publisher.

In Prabha Dutt (1982) the Court ruled that a journalist had a controlled right to interview a convicted prisoner in jail. This was affirmed in the Sheela Barse (1987) and Charulata Joshi (1999) cases. In the famed Auto Shankar case (1994), Justice Jeevan Reddy made it clear that Auto Shankar convicted of six murders and on death row had every right to send his memoirs to a printer without fear of civil defamation from the police officers he criticised.

The decisions are clear: journalists can, within limits, interview pre-trial prisoners, detainees and convicts. Prisoners in jail could write works and have every right to publish them even if about their incarceration. Did not Nehru write his Glimpses of World History for Indira in prison? Recently on May 12, 2017, it was reported that Abdul Wahid Shaikh, later acquitted of the Bombay Blasts, has written of his prison experience.

Gag order

There is another aspect to this. There used to be an American doctrine based on an 1879 case that a criminal “not only forfeited his liberty but all his personal rights except those which the law in its humanity accords to him. He is for the time being a slave of the state.” In Sunil Batra’s case (1978) Krishna Iyer blasted this doctrine to smithereens to prevent a death penalty prisoner being kept solitary confinement.

He went further to say humanity demanded that a “convict was a guest in custody... until the terrestrial farewell whisks him away”. In legal terms, prison may deprive a person of movement, but not his humanity or personal rights including free speech.

Apply this to Karnan’s case. Can he write his memoirs and send them to a publisher? Can he communicate with his family and ask them to inform the press of his terrible incarceration? Can a blanket order prevent the press from seeing him in jail? The Karnan order defies everything the Supreme Court has stood for in its prison and free speech jurisprudence. Was it protecting itself from Karnan’s future, even if sober or even repentant, comments?

Explanatory reasons are to follow. The punishment is too harsh. The censorship of the press unprecedented.

(Courtesy: Mail Today)

Also read: Justice Karnan: A courtroom drama that turned into TV soap

Writer

Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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