This article looks at two cases of Contempt of Court, adjudicated by the Supreme Court of India. The stark difference between the two cases, with no plausible explanation, is quite telling about the power dynamics of the country.
By: Arnav Sharma, 2nd year, B.B.A. LL.B, Jindal Global Law School.
India loves the Contempt of Courts Act, archaic legislation first enacted in 1926 by the colonial rulers, the British. Having its origins in British law, it was amended in 1971 and has been like that ever since. Contempt of Court is the offence of being disobedient or disrespectful towards a court of law, in the form of behaviour that defies the authority, justice and dignity of the court. The UK did away with the Contempt of Court long ago. But in India, it seems like it is here to stay.
The Supreme Court’s contempt of court ruling against Prashant Bhushan stirred India’s soul. Liberal anger poured, with several judges even openly speaking in his support. But not too long ago, many of them watched in silence when Justice CS Karnan was sent to jail for 6 months for calling out corrupt judges. That the outrage is selective is so obvious. Saying that this is because of the difference of caste would do it injustice; Prashant Bhushan is a Brahmin, the highest caste, while Justice Karnan is a Dalit, the lowest.
But, Prashant Bhushan is a product of Delhi’s power elite, he is ‘one of them’ only. Justice Karnan is an outsider to this cosy circle.
But contempt notices or proceedings won’t make Bhushan lose sleep; he has faced similar charges in 2001 and 2009. Every single time, his main argument has been Freedom of Speech. The gutsy and veteran advocate has never missed an opportunity to hammer the judges on corruption. He has rarely put forth any evidence in the public domain but still made huge allegations. He was fined Rs.1.
On the other hand is Justice Karnan. As long as he shot off letters to Chief Justices of High Courts, to the CJI and occasionally to the Prime Minister, and his unpleasant accusations and theatrics as a self-proclaimed crusader were confined to the High Courts, the Supreme Court was hardly perturbed. But when Karnan defied the Supreme Court, the SC set up a seven-judge bench led by the CJI, and unanimously sentenced a sitting HC judge to prison, without even initiating the proceedings for his impeachment.
On the bench were Justice Jasti Chelameswaram and Madan B Lokur, both of whom have now endorsed the resolution expressing solidarity with Bhushan and condemning the SC verdict holding him in contempt.
They termed his criticism of judges and the SC as the right to free speech and demanded the withdrawal of contempt proceedings.
This raises the question: Why didn’t both these judges adopt the same evaluation process while deciding the case against Karnan? Why didn’t they dissent with the majority and gave Karnan a clean chit for exercising freedom of speech alleging corruption amongst judges? If Bhushan is exercising his ‘freedom’ while alleging that judges of the Supreme Court are corrupt, biased, and tilted towards a political party, or ideology, why is it that the same ‘freedom’ is not afforded to Justice Karnan, who was also alleged corruption in the judiciary. If they are right on Bhushan, then they are wrong on Karnan.
The silence on the Karnan case is shocking. Justice Karnan did not make any public allegations against any judge. He had sent his complaint to the Prime Minister’s Office in a sealed envelope. He had asked for independent investigations into the claims made by him and offered to provide evidence backing his claims. Contrast this to Bhushan, who loud-mouthed on social media, singling out specific and selective judges and thus, in the public domain.
So how does one understand the absolute silence in the Karnan case, but widespread outrage and support in Bhushan’s case? The simplest way to look at this is as I mentioned above; Justice Karnan is a Dalit outsider, not a part of the system, the media acted with bias and failed to present his case in totality.
The SC itself wished the same, that nobody ever really knows Justice Karnan’s side of the story, by explicitly stating in the Karnan judgement that ‘the media cannot publish or broadcast any statements made by Justice Karnan’, an unbelievable act by the Constitutional Court of a free, democratic republic.
On the other hand is Prashant Bhushan who belongs to the Upper Caste and the ruling elite. His father was Shanti Bhushan, the Law Minister in the Moraji Desai Cabinet, and the father-son duo was the 75th Most Powerful Indians, according to The Indian Express in 2009.
Another reason for the same is that Justice Karnan was not just challenging the HC and SC, but he had put the whole power structure under scrutiny. The ‘Dalit gaze’ on the upper caste dominated judiciary, was unnerving for the Lutyens’s elite. Justice Karnan put into spotlight the caste domination, hegemonic structure and the opaque and non-transparent/ non-accountable judiciary of India. This is almost blasphemy for the Lutyens’s elite. The same was held by the Kariya Munda Committee of the Indian Parliament (2000-2001), which had found that despite there being suitable, eligible and well qualified SC/ST candidates (judges in District and High Courts), none of them were in the judgeship of the Supreme Court.
Bhushan finds many new friends among the elites after the Supreme Court verdict. Not only because he is one of them, but because he is a man of the system. Justice Karnan is an outsider and, naturally, he found no friends among the elites and opinion-makers.
In my opinion, the Supreme Court’s judgement on Justice CS Karnan is another ADM Jabalpur; a blunder for which the court, and those who stayed silent on it; Justice Karnan’s pleas of mercy, pardon and review were ignored by the Parliament, the Supreme Court and by the President of India, will repent; it is a blunder of such high order, that it will come to haunt the court in the future, and they’ll have to apologize, just as Justice P.N. Bhagvati had to in 2011, 40 years after his troubled judgement in the ADM Jabalpur case.