IN RE, HON'BLE SHRI JUSTICE C. S. KARNAN

3. The tenor of the press briefings, as also. the purported judicial orders passed by Shri Justice C.S. Kaman. prima facie suggest, that he may not be in a fit medical condition. to defend himself. in D the present proceedings. We therefore consider it appropriate. to require him to be medically examined, before proceeding further. We, accordingly, direct the Director Health Services. Government of West Bengal, to constitute a Board of Doctors from Pavlov Government Hospital. Kolkata, to examine Shri Justice C.S. Karnan, and submit a report to this Court whether or not Shri E Justice C.S. Kaman is in a fit condition to defend himself. The above Board shall conduct the examination on 4.5.2017. The Director General of Police, West Bengal, shall constitute a team of police personnel, to assist the Medical Board, in carrying out the directions, recorded hereinabove.

F 4. The Medical Board shall submit its report to this Court, on or before 8.5.2017.

5. Shri Justice C.S. Kaman may, ifhe is so advised, furnish his response to the notice issued to him on 8.2.2017. in the meantime. In case he does not choose to file a response on or before 8.5.2017, G it shall be presumed. that he has nothing to say in the matter.

6. Post on 9.5.2017, at I0.30 A.M., for further orders.

7. Shri R.S. Suri, Senior Advocate, and Shri Ajit Kumar Sinha, Senior Advocate, President and Vice President respectively, of the Supreme Court Bar Association, have made an oral request, H

IN RE, HON'BLE SHRI JUSTICE C.S. KARNAN 257 [JAGDISH SINGH KHEHAR, CJI]

that they may be allowed to intervene and assist this Court in the matter, given the importance of the issue. Prayer is allowed. The Supreme Court Bar Association, is permitted to intervene in the . matter, and assist this Court, on the merits of the controversy.'~ A perusal of the above order reveals, that a further direction was issued by this Court, keeping in mind strange suo-motujudicial orders passed by Shri Justice C.S. Kaman, from time to time. By the instant direction, Courts, Tribunals, Commissions and Authorities were directed not to take cognizance of any order passed by Shri Justice C.S. Kaman, after the initiation of the suo-motu contempt proceedings against him on 8.2.2017, wherein he had already been restrained from handling any judicial or administrative work. c

29Copy pinpoint29. In our considered view, it is not necessary for us to highlight al) the submissions made by Shri Justice c:s. Kaman to the media, as .well as, the orders passed by him. All these orders were placed i.n public ~omain (by Justice Kaman), well before the same were delivered to this • Court. His interviews with the media, and the orders passed by him D were extremely disparaging, illustratively, by an order dated 13.⁴.2017, • he ordered the registration of a case under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities)Act, 1989, against all.the 7 members of the Bench; by another order dated 28.⁴.2017, he directed the Air Control Authority, New Delhi, not to allow any of the 7 E members of the Bench to travel abroad; and by yet another order dated 7:5.2017, he sentenced all the 7 m1;1mbers of the Bench, and Mrs. Justice " ... R.B .... " to 5 years rigorous imprisonment. All this was widely reported by the media in India, as well as, by the foreign media. The BBC also, reported on the issue. " F

30Copy pinpoint30. The matter was finally taken up for hearing on 9.5.2017. During the course ofheariqg, Shri Rakesh Dwivedi, learned senior counsel representing the State of West Bengal informed the Bench, tha(in compliance with the directions issued by this Court on 1.5.2017, the Director, Health Services, Government of West Bengal had constituted a Board of Doctors from Pavlov· Government Hospital, Calcutta, to G examine Justice Kaman. He informed this Court, that the Board of Doctors had approached Shri Justice C.S. Kaman, at his residence (along · with police personnel). He also informed the Bench, that Justice Kaman had met the Board of Doctors, and had spoken to them. Justice Kaman, the Bench was informed, told the Board of Doctors, that he was in a fit H

258 SUPREME COURT REPORTS [2017] 9 S.C.R.

A state of health, mentally and otherwise, and needed no medical evaluation. We are of the view, that psychiatrists on the Board of Doctors, would have been in opposition to evaluate the mental health of Justice Kaman, during the above interaction. Had they found anything remiss. they would have informed this Court accordingly. Since no report has been submitted by the Board of Doctors, we would assume, that they had found nothing 8 significant enough to report. We would, therefore, accept the assertion of Justice Kaman, that he is medically and mentally fit. to defend himself.

31Copy pinpoint31. In the above view of the matter, we would have to rely on the defence tendered by him, in the form of various communications dispatched to this Court from time to time, as also, during the course of hearing, when he appeared in person on 31.3.2017. There is no other alternative with us. We had granted liberty to Justice Kaman vide our order dated 1.5.2017, to furnish his response to the show cause notice (- before 8.5.2017), with the clear indication, that if he choose not to file any response, the Court would proceed with the matter by presuming, that he had nothing more to say. , 32. On the merits of the controversy, this Court was assisted by Shri Mukul Rohtagi, learned Attorney General, from time to time. He was unequivocal in his submission, that Shri Justice C.S. Kaman had consistently committed gross contempt of this Court. In view of the factual position which had emerged, after this Court issued the show caus,e notice to Shri Justice C.S. Kaman (- on 8.2.2017), it was the pointed contention of the learned Attorney General, that Shri Justice C.S. Kaman had also committed contempt, in the face of this Court, by openly denouncing a large number of Judges with allegations of corruption, and by passing orders which had neither any legal sanction nor any justification. Mr. Maninder Singh, learned Additional Solicitor General, reiterated the above position. Shri Rupinder Singh Suri, the President of the Supreme Court !J:... Association, and Shri Ajit Kumar Sinha, its Vice-President also assisted this Court. They were also unequivocal in their submission, that Shri Justice C.S. Kaman was guilty of having consistently and repeatedly committed criminal contempt. Shri K.K. Venugopal, learned senior counsel representing the Registrar General of the Madras High Court, while endorsing the views expressed by all the other learned counsel, submitted that aJinal decision in the matter, be deferred till such time as Shri Justice C.S. Kaman demits his

IN RE, HON'BLE SHRI JUSTICE C.S. KARNAN' 259 [JAGDISH SINGH KHEHAR, CJI]

office as Judge of the High Court. It was submitted, that Shri Justice A C.S. Kaman, would retire on attaining the age of superannuation on l 1.6.2017. It was urged, that the image of the institution would be tarnished, in case Shri Justice C.S. Kaman was punished for contempt of Court, whilst he is holding the high constitutional office.

33Copy pinpoint33. We have given our thoughtful consideration to the factual B position noticed hereinabove, as also, the submissions advanced by learned counsel, who assisted us during the course of hearing. We have carefully examined the text of the letters written.by ShriJustice C.S. Kaman, from time to time. We have closely examined the suo-motu procedure adopted by him, whereby he passed orders which were derogatory to the administration of justice, before he was issued notice for contempt, c by this Court. We have also carefully analysed the orders passed by Shri Justice C.S. Kaman suo-motu (in the purported exercise of the jurisdiction vested in him under Article 226 of the Constitution oflndia, read with Section 482 of the Code of Criminal Procedure), even after the issuance of the contempt notice to him, by this Court. His demeanour was found to have become further aggressive, after this Court passed orders from time to time, in this case. The contents of the letters addressed by him contained scandalous material against Judges of High Courts and the Supreme Court. This correspondence was addressed to the highest constitutional authoritil::s, in all three wings of governance~ the legislature, the executive and the judiciary. His public utterances, turned the judicial system into a laughing stock. The local media, unmindful of the damage it was causing to the judicial institution, merrily rode the Karnan wave. Even the foreign media, had its dig at the Indian judiciary. None of his actions can be considered as bona fide, especiaily in view of the express directions issued by this Court on 8.2.2017, requiring him to refrain from discharging any judicial or administrative work. To restrain his abuse of suo-motu jurisdiction, a further order had to be passed by this Court on 1.5.2017, restraining Courts, Tribunals, Commissions and Authorities from taking cognizance of any order passed by Justice Kaman. G

34Copy pinpoint34. We are of the considered view, that Justice Kaman shielded · himself from actions, by trumpeting his position, as belonging to an under- c· privileged caste. By assuming the above position, he levelled obnoxious . allegations against innumerable Judges of the Supreme Court, Chief . ': ·: :

260 SUPREME COURT REPORTS [2017] 9 S.C.R.

A Justices of the High Courts, but mostly against Judges of the Madras High Court. The list of Judges against whom allegations were levelled by Justice Kaman, include the following:- ]. Justice Jagdish Singh Khehar - Chief Justice oflndia,

2. Justice P. Sathasivam - former Chief Justice of India, B

3. Justice T.S. Thakur - former Chief Justice of India,

4. Justice Dipak Misra - Judge, Supreme Court oflndia,

5. Justice J. Chelameswar-Judge, Supreme Court oflndia,

6. Justice Ranjan Gogoi - Judge, Supreme Court oflndia, c

7. Justice Madan B. Lokur- Judge, Supreme Court oflndia,

8. Justice Pinaki Chandra Ghose - Judge, Supreme Court oflndia,

9. Justice Kurian Joseph - Judge, Supreme Court oflndia, D IO. Justice R.K. Agrawal - Judge, Supreme Court oflndia,

11. Justice R. Banumathi - Judge, Supreme Court oflndia,

12. Justice Sanjay Kishan Kaul - Judge, Supreme Court of India, E

13. Justice F.M.I. Kalifulla - former Judge, Supreme Court oflndia,

14. Justice M.Y. Eqbal - former Judge, Supreme Court of India, . F 15; Justice S.K. Agnihotri - Chief Justice, High Court of Sikkim, 16... Justice R. Sudhakar - Judge, High Court of Jammu & Kashmir,

17. Justice V. Ramasubramanian - Judge, High Court of G Judicature at Hyderabad

18. Justice S. Manikumar - Judge, High Court of Madras,

19. Justice S. Nagamuthu - Judge, High Court of Madras,

20. Justice M. Sathyanarayanan- Judge, High Court of Madras, ' H

... INRE, HON'BLE SHRI JUSTICE C.S. KARNAN . 261 [JAGDISH SINGHKHEHAR, CJI]

21. Justice C.T. Selvam - Judge, High Court of Madras, . A

22. .Justice N. Kirubakaran - iudge, High Court of Madras, . 23. JUstice M.M, Sundresh ~Judge,, High Court ofM~dras,

24. · Justice T; Raja - Judge, High Court of Madras; 25~ · Justice K. Swamidurai- form~r Judge, High Court ~f .B Madras, . · · · . · ·

26. ~ustice Chitra Venkataraman -former Judge,.HighCourt . of Madras, , ·. ' '

27. Justice K:N. Bash~:.: former Judge, High Court of Madras, c

28. Justice V. Dhanapalan - former Judg~, High Court of Madras, · .

29. ·Justice S. Tamilvanan - former Judge, High Court of Madras,

30. Justice Elipe Dharma Rao - former Judge, High Court of Madras,· D

31. · Justice ~.S. Ramanathan" former Judge, High ~ourt of .· Madras; . . . . . .

32. Justice Aruna Jagdeesan - former Judge, High.Court of · J\.:1'adras, . . · ~· -. . .. E

33. Justice G.M. Akbar Ali.-former Judge, High Court of Madras.

35Copy pinpoint35. None of the allegations levelled by Justice Kaman were supported by any material. His allegations were malicious and defamatory, and pointedly by name, against many of the concerned F Judges. He carried his insinuations to the public at large, in the first instance, by endorsing his letters carefully so as to widely 9irculate the contents of his communications, to the desired circles. · Some·· of his letters were intentionally endorsed, amongst others, to the i>reiiident of the Tamil Nadu Advocate Association. And later; through the .intern~t, G he placedf!is point of view, and the entire material, in the public domain. During the course of hearing of the instant contempt petition, his ridicule of the Sup~eme Court remained unabated. In fact; it was heightened, as never before. In this process, he even stayed orders passed by this Court. One of the orders passed by him, restrained the Judges on this H

262 SUPREME COURT REPORTS (2017] 9 S.C.R.

A Bench, from leaving the country. By another order he convicted the Judges on this Bench, besides another Judge of this Cow1:, and sentenced them to 5. years impri~;onment, besides imposing individual costs on the convicted Judges. In the background of the factual position summarized above, while disposing of the suo-motu contempt petition on 9.5.2017, we had directed, that no fw·ther statements issued by Shri Justice C.S. B Kaman would be publicized. Thc instant restraint order, however, does not prevent or hinder any ·public debate on the matter, academic or otherwise. We have not restricted, the media in any manner, other than, to the limited extent expressed above. We hope and expect, that a. meaningful debate, would lead to a wholesome understanding of the issue, from all p'ossible perspectives.

36Copy pinpoint36. From the narration expressed in the preceding paragraphs, we have..no hesitation in concluding, that the actions ofShri Justice C.S. Kaman constituted the grossest and gravest actions of contempt of Court. He has also committed contempt, in the face of the Court. He is therefore, liable to be punished, for his unsavoury actions and behavior. We are satisfied that he should be punished for his above actions, with imprisonment for six months. Ordered accordingly. Note: The emphasis supplied in all the quotations in the instant judgment, are ours. E CHELAMESWAR, J. 1. This case raises many important questions. The factual background of the case is given in detail in the judgment ofHon'ble the Chief Justice oflndia. Therefore, we propose to mention only the bare minimum.

2. The contemnor 's name was recommended for elevation by the F Collegium of the Madras High Court i.e. the then Chief Justice and two senior most judges. After the completion of the ritual of the necessary appointment process contemplated under the Constitution as i~terpreted by this Court in the Second and Third Judges Cases', he was appointed on 30'h March 2009.

IN RE, HON'BLE SHRI JUSTICE C.S. KARNAN 263 [CHELAMESWAR, J.]

addressing letters containing allegations of corruption and commission of various offences by the Judges and successive Chief Justices of the Madras High Court. The contents of some of those letters have been mentioned in the judgment ofHon'ble the Chief Justice. They need no reiteration. The current proceeding is not an inquisition either into any one of those allegations made by the contemnor or whether the activity of the contemnor is within the limits of the conduct permissible for a Judge of a High Court in this country. In our opinion, the facts relevant for recording the conviction and sentence by order of this Court dated 9'" May, 2017 are limited. ·

4. The contemn or addressed two letters2 to the Prime Minister of India. Copies of the same are marked to various other constitutional functionaries including the Chief Justice oflndia. These letters contained allegations ( l) that the selection process ofthe judges of the constitutional courts of this country is unwholesome, (2) of corruption against various judges and Chief Justices of the Madras High Court, (3) of the commission of certain offences (rape) against one of the judges of the Madras High D Court and (4) that the conduct of some of the judges of the Madras High Court which (according to the contemnor) constitute offences uriderthe Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989. The details of these various allegations are to be found in the above-mentioned letters addressed to the Prime Minister and other documents which constitute a part of the administrative record of this E Court referred to in the judgment of the Chief Justice oflndia. S. Whether those various allegations made by the contemnor are based on any evidence to establish the truth of the allegations is a matter which cannot be examined in these proceedings. The allegations are too vague and some of them even incoherent. Whether any one of those alleged misdeeds of the judges of the Madras High Court referrecl' to by the contemnor constitute any offence or actionable wrong under any law of the land requires an enquiry. If the contemnor believes and has the material with him to establish that some of the Judges of the Madras High Court are corrupt or otherwise guilty of some offences known to law, he is required to approach the appropriate fomm competent to examine those allegations. What is the appropriate forum and procedure which the contemnor is required to follow for setting the law 2 Letter No.I-dated 03.01.2017 & Letter No.II-undated, but sometimes in February 2011 H

264 SUPREME COURT REPORTS [2017] 9 S.C.R.

A in motion w.r.t. each of the allegations made by the contemnor are questions to be examined in detail.

6. Such complaints, if made to the appropriate forum/authority are -required to be investigated in accordance with the procedure established by law relevant in the context of each of those allegations B and appropriate further legal proceedings are to be initiated. if the investigation reveals the commission of any offence cognizable or non- cognizable or any other actionable wrong.

7. If there is any truth in any one of those allegations made by the contemnor against any one of the judges named by him, it is too serious c a matter and requires appropriate action in accordance with the constitution and the law in the interest of both the purity of the judiciary and the constitutional governance of this nation.

8. The contemnor who claims to have knowledge of the various alleged misdeeds of the judges of the Madras High Court at best can be o a complainant or informant. If an appropriate enquiry is initiated into any one or all of the allegations made by the contemnor, he would figure as a witness to establish the truth of the allegations made by him. Unfortunately the contemnor appears to be oblivious of one of the fundamental principles of law that a complainant/informant cannot be a judge in his own complaint. The contemnor on more than one occasion E "passed orders purporting to be in exercise of his judicial functions" commanding various authorities of the states to take legal action against various judges of the Madras High Court on the basis of the allegations made by him from time to time.

9. Whether all the above-mentioned conduct amounts to either F ."proved misbehavior" or "incapacity" within the meaning ofArticle 124(4) read with Article 217( I)(b) of the Constitution of India warranting the impeachment of the contemnor is a matter which requires a very critical examiriation. lfthe contemnor is unable to prove the various allegations made against judges of the Madras High Court, what legal consequences would follow from such failure also requires an examination. Prob~ably, the contemnor would be amenable for action in accordance with law for defamation, both civil and criminal apart from any other legal consequences. I0. But the frequency and gravity with which the contemnor made such allegations against his colleagues and the manner in which such

IN RE, HON'BLE SHRI JUSTICE C.S. KARNAN 265 [CHELAMESWAR, J.]

allegations are made public, certainly would have some adverse impact on the reputation of the individual judges against whom allegations are made, the image of the Madras High Court and perhaps is likely to undermine the credibility of the judiciary in this country. Consequently, the activity of contemnor required scrutiny to determine whether the same would constitute contempt of court. In spite ofthe repeated episodes of the accusations by the contemnor, no authority under the Constitution· of India competent to examine the allegations ever thought it necessary to act upon the contemnor's accusations. But that did not deter the contemnor. His activity continued unabated.

11. Therefore, there arose a necessity to examine whether the conduct of the contemnor constitutes contempt of court. If only the contemnor appropriately participated in the proceedings before the Court, a correct answer could have been found.

12. But one thing appears to be certain. If the above mentioned conduct constitutes contempt, it surely can only be criminal contempt falling under the head of scandalising the Court. D

13. Faced with an unprecedented situation resulting from the incessant questionable conduct of the contemnor perhaps made the Chief Justice of India come to the conclusion that all the above-mentioned questions could better be examined by this court on the judicial side. We . see no reason to doubt the authority/jurisdiction of this Court to initiate the contempt proceedings. Hypothetically speaking, if somebody were to move this Court alleging that the activity of Justice Karnan tantamounts to contempt of court and therefore appropriate action be taken against him, this Court is bound to examine the questions. It may have accepted or rejected the motion. But the authority or jurisdiction of this Court to examine such a petition, if made cannot be in any doubt. Therefore, in our opinion, the fact that the present contempt proceedings are initiated suo motu by this court makes no difference to its maintainability. If only the contemnor appropriately participated in the proceedings, all the above- mentioned questions and perhaps many more question incidental to them could have been properly examined and necessary conclusio11s could have been recorded.

14. Unfortunately, the contemnor never allowed the inquiry in the right direction. On the other hand, he chose to 'question the jurisdiction of this Court to initiate contempt proceedings against him· not on the H

266 SUPREME COURT REPORTS (20 J⁷] 9 S.C.R.

A ground that his activity did not constitute contempt, but on the ground that no contempt proceedings could be initiated against a Judge of a High Court. According to the contemnor the only possible legal action against a Judge ofa High Court is to remove him from office in accordance with the procedure of impeachment prescribed under the Constitution - B whatever be his "conduct" and "misconduct", a stand which clearly is untenable in law. He did not stop there. He believed that the initiation of contempt proceedings by this Court against him would constitute an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as the contemn or belongs to one of those communities falling within the sweep of the protective umbrella of that C enactment. He not only believed so, but also purported to pass certain orders ostensibly in exercise of the authority vested in him by virtue of his appointment as a Judge of a High Court to initiate various actions against members of this Bench, the details of which are given in paragraphs 22 to 26. In substance, (i) he accused the members of this D Bench guilty of prejudice against him, (ii) "he declared" thatthe initiation of contempt proceedings against him is malafide judicial action apart from constituting an offence under the Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989.

15. Before we record the reasons which prompted us to be a E signatory to the order dated 91h May, 2017, we deem it appropriate to briefly indicate nature of the authority of the constitutional courts to punish the perpetrators of contumacious action.

16. The authority to punish for contempt of court has always been exercised by the judiciary from times immemoriaP. The justification for F 'In one of the earliest legal pronouncements dealing with the subject, Justice Wilmot in Rex v. Almon ( 1765) Wilmot's Notes, 243 explained the philosophy behind the power to punish for contempt of court. The passage now a classic exposition runs as follows: G "And whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstmction of justice and in my opinion calls out for a more rapid and immediate redress than any obstruction whatsoever, not for the sake of the Judges as private individuals but because they are the channels by which the King's justice is conveyed to the people ... . .. . .. ... ·

JN RE, HON'BLE SHRI JUSTICE C.S. KARNAN 267 [CHELAMESWAR, J.] . -~~-,~-~·

the existence ofthat is not to afford p~dtection to individual judges⁴ but A to inspire confidence in the sanctity and'efficacy ofthejudiciary5, though they do not and should not flow from the power to punish for contempt. They should rest on more surer foundations. The foundations are - the trust and confidence of the people that the judiciary is fearless and impartial. B

17. The power to punish for contempt of court has always been recognized to be inherent in certain superior courts and in others it was ·~ · conferred by statutes.

18. This Court in E.M. Sankaran Namboodripad v. T. · Narayanan Nambiar, ( 1970) 2 SCC 325; observed: ,, C "6. The law of contempt stems from the right of the courts to punish by imprisonment or fines persons guilty of words or acts which either obstruct or tend to obstruct the administration of justice. This right is exercised in India by all courts when contempt is committed in facie curaie and by the superior courts on their D own behalf or on behalf of courts subordinate to them even if committed outside the courts. Formerly, it was regarded as inherent in the powers of a Court of Record and now by the Constitution oflndia, it is a part of the powers of the Supreme Court and the · High Courts .... " · E

19. This Court on more than one occasion examined the nature and scope of the power to punish for contempt. In R.L. Kapur v. State ofMadras, (1972) I SCC 651, this Court examined the question whether the power of the Madras High Court to punish for contempt ·Of itself arose under the Contempt ofCourts Act, 1952. The Court held as follows: F "Para 5. . .. Article 21 S declares that every High Court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself. Whether Article 21 S

4 "The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges arc supposed to be men of fortitude, able to G thrive in a hardy climate." [Douglas, J., Craig v. Harney, 331 US 367, 376 {1947)) '"The object of the discipline enforced by the Court in case of contempt of Court is not to vindicate the dignity of the Court or the person of the Judge, but to prevent undue interference with the administration of justice." [Bowen, L.J. - He/more 'v. Smith, ( 1887) 35 Ch D 449, 455] H

268 SUPREME COURT REPORTS (2017] 9 S.C.R.

A declares the power of the High Court already existing in it by reason ofits being a court ofrecord, or whether the article confers the power as inherent in a court of record, the jurisdiction is a special one, not arising or derived from the Contempt of Courts Act, l 952 ... In any case, so far as contempt of the High Court itself is concerned, as distinguished from that ofa court subordinate to it, the Constitution vests these rights in every High Court, and so no Act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority.... " Subsequently, in Pritam Pal v. Higll Court ofMadl1ya Prades/1, Jabalpur, 1993 Supp {I) SCC 529, another Bench of this Court opined as follows: "Para 15. Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a contempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the contemnor to defend himself. But the procedure -has now been prescribed by Section 15 of the Act in exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the Constitution. Though the contempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by appropriate legislature under E Entry 77 ofList I and Entry 14 of List III in exercise of which the Parliament has enacted the Act of 1971, the contempt jurisdiction of the Supreme Court and the High Court is given a constitutional foundation by declaring to be 'Courts of Record' under Articles 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment. ... " It further indicated the various forms of contumacious action constituting criminal contempt. Scandalising the court is one of them. "There are many kinds of contempts. The chief forms of contempt are insult to Judges, attacks upon them, comment on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesses or the parties, abusing the process of the court, breach of duty by officers connected with the court and scandalising the Judges or the courts. The last form occurs, generally speaking, when the conduct of a person tends to bring H

IN RE, HON'BLE SHRI JUSTICE C.S. KARNAN 269 [CHELAMESWAR, J.]

the authority and administration of the law into disrespect or disregard. In this conduct are included all acts which bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. Such contempt may be committed in respect of a Single Judge or a single court but may, in certain circumstances, be committed in respect of the whole of the judiciary or judicial system."6 •

20. The exercise of such a power has always been very infrequent and subjected to some discipline. Members of the Judiciary have always been conscious⁷ of the fact that the power for contempt should be exercised with meticulous care and caution and only in absolutely compelling circumstances warranting its exercise. "The countervailing c good, not merely of free speech but also of greater faith generated by exposure to the actinic light of bona fide, even if marginally over-iealous, criticism cannot be overlooked. Justice is no cloistered virtue."8

6 D E.M. Sankaran Namboodripad v. T. Naraymian Nambiar, ( 1970) 2 SCC 325, para6 7 Shri Barmlakanta Mishra v. Tl1e Registrar ofOriss11 High Coun & Anotlter, ( 1974) I SCC 374 (Hon. Iyer, J. - separate but concurring opinion) "Para 65. Before stating the principles of la~ bearing on the facets of contempt of court raised in this case we would like to underscore the need to draw the lines clear enough to create confidence in the people that this ancient and inherent power, intended to preserve the faith of the public in public justice, will not be so used as to provoke public hostility as overtook the Star Chamber. A vague and wandering jurisdiction with uncertain frontiers, a sensitive and· suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties and so the special jurisdiction and jurisprudence bearing on contempt power must b): delineated with deliberation and operated with serious circumspection by the higher judicial echelons. So it is that as the palladium of our · freedoms, the Supreme Court and the High Courts, must vigilantly protect free speech even against judicial umbrage - a delicate but sacred duty whose discharge demands tolerance and detachment of a high order. G Para 67. Considerations such as we have silhouetted led to the enactment of the Contempt of Courts Act, 1971, which makes some restrictive departures from the traditional law and implies som; wholesome principles which serve as unspoken guidelines in this branch ciflaw.... " • Ibid, Para 82 at page 409 H

270 SUPREME COURT REPORTS [2017] 9 S.C.R.

A In a judgment rendered almost a decade back, one of us (Gogoi, J.) sitting in the Gauhati High Court held9: "14. Judiciary is not over-sensitive to criticism; in fact, bona fide criticism is welcome, perhaps, because it opens the doors to self- introspection. Judges are not infallible; they are humans and they B often err, though, inadvertently and because of their individual perceptions. In such a situation, fair criticism of the viewpoint expressed in a judicial pronouncement or even of other forms of judicial conduct, is consistent with public interest and public good that Judges are committed to serve and uphold. The system of administration of justice, therefore, would receive due impetus c from a realization amongst Judges that they can or have actually erred in their judgments; another perspective, a new dimension or insight must, therefore, always be welcome. Such a realization which would really enhance the majesty of the Rule of Law, will only be possible if the doors of self-assessment, in the light of the opinions of others, are kept open by Judges.

16. But when should silence cease to remain an option? Where is the line to be drawn? A contemptuous action is punishable on the touchstone of being a wrnng to the public as distinguished from the harm caused to the individual Judge. Public confidence in the judicial system is indispensable. Its erosion is fatal. Of course, Judges by their own conduct, action and performance of duties must earn and enjoy the public confidence and not by the application of the rule of contempt. Criticism could be of the. underlying principle of a judicial verdict or its rationale or reasoning and even its correctness. Criticism could be of the conduct of an individual F Judge or a group of Judges. Whichever manner the criticism is made it must be dignified in language and content because crude expressions or manifestations are more capable of identification of the alleged wrong with the system as a whole. Motives, personal interest, bias, pre-disposition etc. cannot be permitted to be G attributed as being responsible for the judicial verdict, unless, of course, the same can be established as an existing fact. It is the above category of acts or publications that would fall within the prohibited degree warranting action in contempt law."

H ' 2008( I) GLT 800 - In re: Lalit Kali ta & Others

IN RE, HON'BLE SHRI JUSTICE C.S. KARNAN 271 [CHELAMESWAR, J.]

21. The Contempt of Courts Act, 1971 recognises two forms of A contempt- civil and criminal. Such a distinction has always been made in this country ever since the present legal system was introduced by the British. Civil contempt is defined under Section 2(b)1° to. be "wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court." B Section 2(c) defines criminal contempt. "Section 2(c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which- c . .

(i) scandalises or tends. to scandalise, or lowers or tends to lower the authority of, any court; or '· (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or . o (iii) interferes or tends to interfere with, or obstructs or tends to · obstrnct, the administration of justice in any other manner;" . It can be seen from the above that ariy act which scandalises or tends to scandalise the authority of the Court and interference or obstruction of the administration ofjustice in any manner are two forms of contumacious action. · L ~' •

22. It must be mentioned here that Great Britain from which we have adopted the present legal system11 abolished the offence of criminal

1 • Section 2 (b) "civil contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful brea~h of an undertaking given to a court. 11 "Para 34. It will be seen that the terminology used in the definition is borrowed from

the English Law of Contempt and embodies concepts which are familiar to that Law which, by and large, was applied in India. The expressions "scandalize", "lowering the authority of the Court", "interference", "obstruction" and "administration of justice·· G have all gone into the legal currency of our sub-continent and have to be understood in the sense in which they have been so far understood by our Courts with the aid of the English Law, where necessary."'. - Shri Baradakanta Mishra·s case - See Footnote 6 supra

272 SUPREME COURT REPORTS (2017) 9 S.C.R.

A contempt on the ground of scandalising the court pursuant to the recommendation of the Law Commission dated l 2'h December, 2012 1 ~ After discussing the various suggestions received and their implications, the Law Commission opined at para 91: . "91. One question is whether these offences are capable of B covering publicatio!ls making collective accusations against the judiciary or a section of it rather than an individual judge. If the material is sufficiently offensive or threatening, it could in principle be covered by the Public Order Act 1986 or the Communications Act 2003. It is unlikely to fall within the Malicious Communications c Act 1988 or the Protection from Harassment Act 1997, which are mainly concerned with conduct aimed at individuals." and finally recorded its conclusions at para 93. The relevant portion is: "93. xxx xxx xxx D ( 11) There are several statutory offences covering the more serious forms of behavior covered by scandalising, and civil defamation proceedings are available in the case of false accusations of corruption or misconduct." and recommended- E "94. Accordingly, we see no reason to alter our first preference as expressed in the consultation paper, namely the abolition of scandalising the court without replacement."

23. The American law in this regard appears to be more liberal with greater emphasis on freedom of speech. We do not wish to undertake any elaborate analysis of the American jurisprudence for the present purpose. Borrowing a passage from the Law Commission's 12 One of the consideration which weighed with the Law Commission for recommending abolition of the offence of criminal contempt is the fact that there are other enactments such as Public Order Act, l0986 and the Communications Act, 2003 which can sufficiently take care of the situations where unfounded allegations which would otherwise have constituted offence of scandilising the court are made. "80. There are several criminal oftences some of the same behaviour that can constitute scandalising the court, and these would continue to be available whether or not the offence of scandalising is abolished." H

.IN RE, HON'BLE SHR.I JUSTICE C.S. KARNAN 273 [CHELAMESWAR, J.]

Report of United Kingdom on "Contempt of Court: Scandalising the A Court (Contempt of Court: Scandalising The Court" 13 would suffice: "Para 46. In summary, on a North American approach, the entire offence of scandalising may well be both unconstitutional and contrary to human rights." With reference to other common law countries, the Law B Commission summarized the position as follows: "United States Jaw traditionally regards freedom of speech, as enshrined in the First Amendment, as the paramount right that prevails over all others in case of conflict, unless there is a "clear and present danger that [the words] will bring about the substantive C evils that Congress has a right to prevent" [( 1919) 249 US 47, 51 to 52]. Other common Jaw countries, such as England and Wales and Australia, by contrast, acknowledge the importance of freedom of speech, but regard it as one right among others, with any conflict being resolved by way ofa balancing exercise. [Justice D R Sackville, "How Fragile Are the courts? Freedom of Speech and Criticism of the Judiciary" (2005)]. ln our consultation paper we drew attention to the same contrast. The position in Canada remained uncertain until the court in Kopyto (( 1987) 47 DLR (4th) 213 (Ont CA)], disapproving ofthe scandalising offence, appeared to adopt an approach near to that of the United States. New E Zealand declined to follow Kopyto [( 1993) NZHC 423 : [ 1994) I NZLR 48], thus remaining in the Anglo-Australian camp."

24. However, in India scandalising the Court is still recognized to be an act constituting contempt of court. 14 Though what is the activity which constitutes scandalisation of the Court is not defined or very F precisely explained in the above-mentioned cases, individuals were held guilty of contempt of court on the ground that their deeds scandalized the Court.

& Another; (2002) 3 SCC 343 • In re: Arundhati Roy H

274 SUPREME COURT REPORTS [2017] 9 S.C.R.

A 25. Interference with the due course of any judicial proceeding is another facet of criminal contempt. The conduct of the contemnor subsequent to the initiation of suo motu contempt petition No. I of2017 in purporting to pass various orders, the details of which are contained in paragraph!; 22 to 26 of judgment of Chief Justice of India leaves no B scope for doubt about the question whether such conduct would amount to interfering with the judicial proceedings pending in the highest court of the land. The main proceeding might or might not have ended in finding the guilt of the contemnor of scandalising the judiciary. The contemnor aborted all attempts to judicially resolve the charge of commission of contempt brought against him by the initial notice of the C Court dated 08.02.2017. Rather, he chose to engage in a tirade challenging the very jurisdiction of this Court to enquire into an allegation of contempt against a sitting Judge of a High Court. He had address~d numerous written communications to the Members of the Bench dealing with the case and had also passed several purported judicial orders, which, even on a cursory glance, are contemptuous in nature and content. The "post notice" conduct and the actions of the contemnor are to be judged by a minimum standard of expectation, surely, what we have before us . is a Judge who has crossed even the most liberal standards of expected and permissible expression of opinion. There is no doubt in our mind that such conduct on the part of the contemnor has brought disrepute to the judicial system and has the potential of shaking the confidence of the average citizen in the system. He has not shown the slightest remorse which could be a mitigating factor. Such conduct and action, if tolerated, would certainly reflect an element of weakness in the system; no such weakness can be allowed to enter the system. F The conduct of the contemnor during the pendency of .the proceedings in this Court certainly constitutes criminal contempt falling both under the heads of scandalising the court as well as interference with the proceedings of this court. In our view, the contemnor is therefore liable to be punished for the contempt of this court. G

26. This case, in our opinion, has importance extending beyond the immediate problem. This case highlights two things, (I) the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels; and (2) the need to set up appropriate legal regime to deal with H

IN RE, HON'BLE SHRI JUSTICE C.S. KARNAN 275 [CHELAMESWAR, J.]

situations where the conduct ofa Judge ofa constitutional court requires A corrective measures - other than impeachment - to be taken.

27. The conduct of the contemnor ever since his elevation to the bench has been controversial.. Obviously, there is a failure to make an assessment of the personality· of the contemnor at the time of recommending his name for elevation. Our purpose is not to point fingers 8 to individuals. who were responsible for recommendation but only to · highlight the system's failure of not providing an appropriate procedure for making such an assessment. What appr@riate mechanism would be suitable for assessing the personality of the candidate who is being considered for ,appointment to be a member of a constitutional court is a c matter which is to be identified after an appropriate debate by all the concerned - the Bar, the Bench, the State and Civil Society. But the need appears to be unquestionable. , >

28. We are only sad to poillt out that apart from the embarrassment that this entire episode has caused to the Indian Judiciary, there are various other instances (mercifully which are less known to the publi.c) of conduct of some of the members of the judiciary which certainly , would cause some embarrassment to the system.

29. The framers of the Constitution were people of a great sense of patriotism and maturity, men and women who maintained high standards of civic morality. Obviously, they expected those who are to be chosen for the higher constitutional offices or to be appointed to public service would be chosen by assessing their suitability (efficiency and integrity) by employing appropriate standards. The makers of the Constitution were conscious of the fact that ascendance to higher offices need not necessarily always guarantee rectitude and the incumbent of any constitutional office could resort to behaviour inconsistent with the nature of the office and standards .of conduct expected. Thereafter, provisions were made in the Constitution for impeachment of holders of various constitutional offices starting from the President oflndia. G

30. When it came to the members of the constitutional courts equally, it was visualised tha( there can be such occasions. But the standards and procedure for impeachment of judges are much more rigorous for reasons obvious. There can be deviations in the conduct of H

276 SUPREME COURT REPORTS [2017] 9 S.C.R.

A the holders of the offices of constitutional courts which do not strictly call for impeachment of the individual or such impeachment is not feasible. Surely there must be other ways of dealing with such cases. The text of the Constitution is silent in this regard. May be it is time for the nation to debate this issue. B

Nidhi J.lin Contempt Petition disposed of