A qualified judicial Emergency

66-Justice-Karnan Courting trouble: Justice Karnan | Salil Bera

While sentencing Justice Karnan to a six-month prison term on May 9, the Supreme Court also interdicted the media by holding that “no further statements made by him should be published hereafter”. Though one can only deprecate the abominable behaviour of Justice Karnan, the top court could not have acted emotionally; nor could it compromise on legal principles or procedures. Karnan was not diplomatic. He was rustic in his words and atypical in deeds. Though not charged with corruption or any act involving moral turpitude, the belligerent judge was ostensibly imbalanced and proved himself to be not suitable to be part of the establishment. But, could the Supreme Court deny him an opportunity to defend himself on the question of punishment?

A judicial pre-censorship is the worst form of illiberality in any working democracy. First of all, it amounts to a punishment before the offence is actually committed or even when no offence is committed in future. Secondly, it curtails the basic promise of democracy, namely freedom, not only to the accused, but to the whole citizenry, of which the media is a part. Thirdly, it prohibits even a sane or matured public discourse on the topic by referring to the original remarks by the person who is at the receiving end of the punishment. Fourthly, it involves a punishment which transcends the horizons of the contempt law in the country. A censorship after the conclusion of the case is impermissible, both legally and constitutionally. Had there been such prior restraint earlier, one may not be even able to assess Karnan’s own behaviour in the very same episode, which the Supreme Court failed to realise.

The Karnan gag order clearly negates the fundamental freedom of expression and the right to be informed, a constitutional guarantee contained in Article 19(1)(a). The prohibition, which is not supported by any law or even precedents, does not fall within the ambit of ‘reasonable restrictions’ as permitted by Article 19(2) either.

More shockingly, the Supreme Court has once more weakened the free speech jurisprudence evolved by itself in the country. In a plethora of earlier decisions, the apex court had underlined the significance of media freedom. In the Naresh Shridhar case (1966), the court said that prior restraint is permissible only in a ‘given case’, and during the pendency of the trial. Even to this majority view, Justice Hidayatullah had disagreed saying that in any circumstances whatsoever, an open trial could not be converted into a “private affair”.

Recently, while upholding the provision relating to criminal defamation in BJP leader Subramanian Swamy’s case (2016), the apex court was keen enough to refer to the seminal judgments on press freedom evolved in India by way of Romesh Thapar (1950), Express Newspapers (1958), Sakal Papers (1961), Bennett Coleman (1972), Cricket Association of Bengal (1995), Motion Picture Association (1999) and Khushboo (2010). Recently, in the Sahara case (2012), the Supreme Court came down heavily against the very idea of outside regulations on the media. The apex court, however, did not bear in mind these principles while issuing the Karnan gag order.

L’ affaire Justice Karnan, no doubt, resulted in an unprecedented and most shocking directive that amounts to a qualified judicial emergency, which strangely remains not only unopposed, but also to some extent unnoticed.

Kaleeswaram Raj is a lawyer at the Supreme Court and the Kerala High Court.

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