Your Lunatic Lordship

At the time of writing this story, Indian police in three states are looking for the High Court Justice Chinnaswami Swaminathan Karnan (hereafter called “Karnan” to limit the wordcount). Karnan is bald, with a bristled grey moustache, white religious mark on his forehead, and is usually suited and booted except in his sleep.

Karnan has been a HC Judge for eight years, and what an electrifying period of eight years it has been. In 2011, he formally complained against a fellow judge for deliberately touching him by foot, because he is a Dalit, a lower caste person. The upper caste judges always discriminated against him. He would barge into other court rooms where fellow judges were conducting their cases - Karnan suspected other judges (upper caste) were given better cases. Angry at the injustice, he would start shouting and interfering. The upper caste judges smiled and tolerated it all. Complaining against Karnan could stamp you as anti-Dalit.

Sex defines marriage

Karnan’s judgements were innovative. In June 2013, he pronounced an important moral verdict. If a man and a woman, both adult and unmarried, have sex, their act of sexual gratification is a valid marriage under law. Exchanging rings or garlands, registering the marriage and following religious customs were for the satisfaction of society. Consummation constituted marriage. Some sections of media and public, essentially immoral people, protested against the judgement. Karnan then issued a “gag order”, (a Judge’s prerogative), silencing everyone.

In late 2014, twenty Madras (Chennai) HC judges wrote a letter to the Supreme Court. It talked about the anguish and agony suffered by all of them at the hands of this gentleman. Look, they are all discriminating against me, harassing me, said Karnan in response.

Boss is not a superior

In a few months, Karnan started Suo Motu proceedings against his own boss, Justice Sanjay Kaul, the Chief Justice of the Madras HC. (Suo Motu is another privilege of a judge, to begin a case at his own initiative, without a plaintiff or police). Karnan accused his boss of giving him dummy cases. Because of his caste. The SC ordered a stay on those proceedings. Infuriated at the interference, Karnan launched criminal proceedings against the two SC judges who had ordered the stay. Karnan’s order charged them under the SC/ST atrocities act. (An act to protect atrocities against lower castes).

Transfer and cc to all

The SC deliberated Karnan’s matter for months. Finally, on 12 February 2016, the Chief Justice of India ordered his transfer from Chennai to Calcutta. During British days, criminals and political convicts were transferred to the Andaman Islands. In independent India, unruly judges are transferred to the north-east of India.

All hell broke loose when Karnan saw his transfer order. How dare anyone transfer him without his prior consent? Three days later, Karnan issued a judicial order bringing a stay on the transfer. In his order, he said to the SC, “I am apt to constrain Your Lordship’s Order after invoking Article 226 of the Constitution of India, by staying Your Lordship’s tentative recommendation Order dated 12.02.2016... I request Your Lordship not to interfere in my jurisdiction...” He also asked the SC to submit a written statement in two weeks’ time. Karnan sent a copy of his judicial order to the Prime Minister, President, Law Minister, leaders of all opposition parties and the National Commission for Scheduled Castes and Scheduled Tribes (called “SC/ST Commission” hereafter). He always sent copies of his important orders to prominent politicians and the SC/ST commission. Karnan was perfectly entitled to it; no law prohibited sending copies of the order.

The SC, instead of sending a written explanation as demanded by Karnan’s order, made all his orders, suo motu or otherwise, null and void. Karnan knew they had done it because he belonged to a lower caste. Reluctantly, and after wild protests, he agreed to move to Calcutta. In the Calcutta HC, he became a full-fledged HC Judge again, capable of passing valid orders. The Madras HC – its judges, staff and secretaries – threw a grand party to celebrate Karnan’s departure for Calcutta.

Letter to the Prime Minister

On 23 Jan. 2017, Karnan wrote an open letter to the Prime Minister of India. The letter listed 20 corrupt HC and SC judges. He asked the PM to arrange their interrogation by a central competent agency. For unknown reasons, the PM did nothing. Karnan didn’t issue any order against the Prime Minister; probably he wanted to give him some time.

The SC of India, on the other hand, reacted. It issued a contempt notice against Karnan, for degrading the judiciary and making allegations of corruption against SC Judges. In March, the top court issued a warrant against Karnan, barring him from practicing in the court.

This was outrageous. Instead of investigating the corruption among the judges, the whistleblower was about to be punished. This was unacceptable to Karnan. On 16 March, he issued an order asking the SC judges (issuers of the contempt notice) to pay Rs 14 crore (2 million dollars) for disturbing his mind and normal life. He ordered the Registrar General of the SC to deduct the amount from the salaries of each of the accused.

Two weeks later, the SC wondered, for the first time, if there was something wrong with Karnan’s mental health. By now, Karnan, unable to work from the court, was working from his residence in Calcutta. He issued an order summoning the SC judges to his residence for questioning his mental health.

On 1 May, the SC ordered that a medical team should examine Karnan for any mental illness. The following day, Karnan issued an order to the Air Control Authority of India asking it to prevent any of the SC Judges from travelling abroad, since otherwise they could spread the virus of caste discrimination globally.

On 4 May, the medical team sent by the SC visited Karnan at his Calcutta home (now also an HC office). Karnan offered them tea, talked as politely as he could, and despatched them off. By now India’s most recognised judge; TV channels were vying for his interviews. Karnan soundly argued that the SC erred in sendingthe order to him. If he was mentally ill, (which of course he was not) the order should be sent to his relatives and not him. In any case, mental illness has nothing to do with the soundness of a person’s mind, he added.

A deserving punishment

By now, Karnan had had enough of the unfair SC. He must give them a deserving punishment. This week, on Monday, Karnan sentenced J.S.Khehar, the Chief Justice of India and seven other SC judges to 5 years of Rigorous Imprisonment and a fine of Rs 100,000 each. They are charged under the SC/ST (prevention of atrocities) Act. If the fine is not paid within a week, they will serve another six months of imprisonment.

Karnan directed Delhi’s Director General of Police to arrest the SC judges. (The poor man didn’t know Delhi, unlike other states, has a Commissioner of Police and not DGP, but that didn’t really matter.) As usual, he sent copies of his orders to the SC/ST Commission. 

Oddly enough, the SC judges, instead of surrendering themselves, pronounced a six-month jail for Karnan, and issued a non-bailable warrant. Karnan’s lawyer argued that next month he turns 62 and is obliged to retire. (Sixty-two is the retirement age for judges of all castes). That was a reasonable request. Why send an HC Judge to jail and spoil the reputation of the Indian judiciary, when a month’s wait can send him to retirement? The unreasonable SC disagreed.

For the last three days the police have been looking for Karnan in Bengal, Tamil Nadu and Andhra Pradesh. He is not found. His lawyer, though, has launched a case in the SC to bring a stay on the order sending Karnan to jail. Unless the SC wants to engage in discriminatory practices, it must consider Karnan’s appeal.

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Analysis

The inbreeding of Judges

Who appoints judges? In the USA, we recently saw Trump nominating Neil Gorsuch to the SC and the senate somehow confirming it. When politicians appoint judges, can the judges rule against those politicians or their parties? Judges are human, and unfortunately can suffer from the same biases as all of us do. Indian judges retire at 62, American SC judges don’t retire, they are in power until death. The American SC now has 5 conservative and 4 liberal judges. It is expected that borderline cases will, for the foreseeable future, get conservative verdicts by a 5:4 vote.

Judges can also be elected, as in the State Court Judges in 32 out of 50 states of the USA. Like politicians, those judges need campaign money, and it is too much to expect them to rule against the sponsors in court cases. 

In India, the judiciary has for long fought against any politician interfering in the selection process of the judges. India’s finance minister called this ‘the tyranny of the unelected’. In what is called the Collegium system, a judicial inbreeding system, judges select judges. After the Karnan saga, nobody clearly remembered how he was appointed. Karnan was appointed by three judges. Justice P.K.Mishra apologised for appointing him without knowing him. The Chief Justice of India then, justice Balkrishnan said: “Others propose the names, and we go by that. I didn’t make any specific enquiry about him.” Justice A.K. Ganguly who had proposed Karnan’s name said he didn’t remember, it was so long ago. He thought for social justice, a Dalit judge should be part of the HC Judiciary.

India has fewer than 600 High Court judges and only 31 Supreme Court judges. That is half a judge for every million. (Or one HC/SC judge per 2 million Indians). Absolutely no written record is kept of the appointment procedure. Three judges get together over tea and biscuits, discuss a candidate (like Karnan) and appoint him. With no checks and balances, the Indian judiciary is supremely powerful. (Indira Gandhi was convicted by a High Court judge for a minor misfeasance, causing the Emergency of 1975) And if you criticise the judiciary too strongly, you may attract contempt charges and go to jail.

Reservation

An affirmative action (USA) or positive discrimination (UK) is called “reservation” in India. It is essential to support historically oppressed sections of society. In India, schedules (lists) of such people are prepared. Castes and tribes falling into the lists are the Scheduled Castes and Scheduled Tribes (SC/ST). Many Indian institutions follow reservations by making entry easy for the SC/ST candidate, not exit. In other words, an SC/ST candidate may enter a medical institute with entry standards relaxed. However, he must study, compete with everyone and qualify to become a doctor just like everyone else. In critical areas of life, professionals must be selected on merit. A blind person is handicapped, and deserves sympathy, but he can’t be made a pilot to show positive discrimination. A High Court judge is a serious profession capable of affecting the lives of many people. He must be selected on merit, not on caste. Karnan is not the first or the last SC/ST judge in India. The others, though, were selected despite their caste, and not because of it.

The enigmatic language

Indian judiciary’s argument about keeping the appointments within a family is that the Indian politicians are not yet evolved (meaning they are backward). There is some merit in this argument, since an illiterate Indian can become a member of the Indian parliament (and many do), age and residence being the only qualifications. Judges, on the other hand, have a law degree as a minimum.

Reality, though, shows that the law degree is no evidence of quality education. The legal profession, just like politics, is not the first choice of the brightest Indian minds. Second, many of the judgements are so enigmatically written, one wonders which law colleges teach such creative writing. Look at the following judgement of a High Court:

“(The)...tenant in the demised premises stands aggrieved by the pronouncement made by the learned Executing Court upon his objections constituted therebefore...wherewithin the apposite unfoldments qua his resistance to the execution of the decree stood discountenanced by the learned Executing Court”.

Such abstract language is not exceptional, it’s widespread. The Supreme Court quashed the above verdict, not on any legal grounds, but by saying they didn’t understand what the HC judge wanted to say. (Compare this to a beautiful ruling written in plain English with Emoji, web symbols, so that children affected by the case can read it. http://www.bailii.org/ew/cases/EWFC/HCJ/2016/9.html . This ruling from last year was written by Mr Justice Peter Jackson from an English High Court.)

Karnan’s case makes it imperative to involve people from outside the judiciary in the selection process. Also, as in any corporation, the process must be transparent with records maintained in writing.

Why was Karnan not impeached?

In theory, an Indian judge can be impeached. But the process is so complicated that both the houses of Parliament will need to spend days, possibly months, trying to get the vote through.

In some countries, buffoons become judges. In some countries, buffoons become presidents. Until they can be removed after a long struggle, we simply need to sit back and enjoy the show.

Ravi