“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” ― James Madison, Federalist Papers
The on-going battle between Justice Karnan, the judge of the Calcutta High Court and the Supreme Court of India resulting in the conviction of the former under the Contempt of Court jurisdiction of the Supreme Court raises many questions of constitutional importance and poses challenges before the Constitution, democracy and Parliament of India. Here is a short discussion of those questions and challenges.
1. Assault on Sovereign Power of Parliament &Principle of Federalism
Our Constitution provides for the separation or division of power between legislative, executive, and judicial organs. The powers to appoint a judge (including the Chief Justice) of a High Court and of Supreme Court are explicitly and unambiguously vested with the executive organ of the State and more particularly with the President (Article 124 and 217 of the Constitution) to be exercised in consultation with the chief justice (by judicial interpretation with the collegium of the Supreme Court and High Court).
Once the judge (including the Chief Justice) of the High Court and Supreme Court is appointed, the President’s power is brought to an end by the Constitution from interfering with that appointment except on recommendation of Parliament under Article 124 (4) and Articles 217 (1) (b) and 218 of the Constitution by way of impeachment motion passed by 2/3rd of majority of members, present and voting of both the Houses.
Neither the President nor the Supreme Court can remove any judge of the High Court or Supreme Court or take away or strike down the constitutional function of the said judge. Any interference by the President or Supreme Court or High Court with the exercise of the function of the judge is an assault on the Parliament’s power to impeach or remove the judge or the chief justice and is nothing less than the abrogation of sovereign power of the Parliament.
Therefore, the contempt proceedings against the sitting High Court judge by the Supreme Court cannot be envisaged and that attempt is totally against the scheme of the Constitution.
2. Undermining the Independence of Judiciary
In our scheme of the Constitution, independence of judiciary is an essential and basic feature of the Constitution. It’s an inherent part of democracy established by the written Constitution with the scheme of separation of power. The independence of judiciary does not mean the independence of the Supreme Court alone but the independence of the High Courts as well.
The independence of the High Court is guaranteed in the Constitution by not granting the power of superintendence to the Supreme Court over the High Courts and by preventing the Supreme Court from the power to issue certain writs against the High Court (Hurra versus Hurra (2002) 4 SCC 388). Thus, the High Courts are not amenable to the Writ Jurisdiction of the Supreme Court. They are as much separate and independent as the Supreme Court.
The appointment of High Court judges is also made by President and the power to remove them is vested with the Parliament. The High Courts’ power to issue certain writs under Article 226 of the Constitution is much wider than the power of the Supreme Court under Article 32 of the Constitution and Supreme Court does not have an appellate jurisdiction over the High Courts except on certificate by High Court itself under Article 134-A of the Constitution.
The power under Article 136 is discretionary and therefore, the High Court is a court of last resort except for the safeguards under Articles 134 (1) (a) & (b) and 142 of the Constitution.
Already, the excessive recourse to Article 136 has left the High Court in utter difficulty in passing judgments and orders without considering the implications of the judgments if appealed with permission under Article 136 of the Constitution. Because of rampant recourse to Article 136 of the Constitution, the High Courts are already afraid (independent perception of author, which may not be true) of the Supreme Court and hence, any addition by way of recourse to Contempt Jurisdiction by the Supreme Court (under Article 129 of the Constitution) against the judge of the High Court would seriously undermine the prestige, power and independent existence of the High Court. If that happens, that would be the beginning of the division of judiciary and an era of anarchy.
3. Prestige, Power and Public Image of the Judiciary is in danger
The Supreme Court and High Courts are both the “Court of Record” having power to punish for contempt of itself. Neither the Supreme Court’s power is above the High Courts nor the High Court’s power is lesser than the Supreme Court in exercise of contempt jurisdiction under Articles 129 and 215 respectively of the Constitution (from the pure Constitution’s reading; the Contempt of Court’s Act, 1980 is not taken in to consideration).
If the Supreme Court can punish the sitting judge of the High Court for the contempt of itself then the High Court can also punish the Supreme Court judge (including Chief Justice for contempt) for its own contempt but such an interpretation would be absurd and against the spirit of the Constitution because both the Courts are not amenable to each other.
It is also to be remembered that the Constitution does not provide the right of appeal to the Supreme Court from the Judgment of the High Court (supra). It is also to be remembered that the judge of a High Court or judge of the Supreme Court including the Chief Justice(s) of both the High Courts and Supreme Court are responsible to the Parliament for their continued existence and therefore, they cannot be considered to be superior to each other.
Also, the qualification of a judge of the High Court and Supreme Court is uniform and that is almost same as provided under Articles 124 (3) and 217 (2) of the Constitution. Therefore, the High Courts and Supreme Court are equal in power with supremacy of the Supreme Court in the matter of interpretation of Constitution and for federal character (Articles 131, 136, 141, 142, 143, and 144 of the Constitution). Remember, the Supreme Court is not an APEX Court.
4. Violation of Procedural and Constitutional Safeguard
The High Courts and Supreme Court Judges are responsible to the Parliament for their continued existence and no one can remove them from their post except by Parliament. The procedural and constitutional safeguards provided to the High Court and Supreme Court judge are most difficult to be adopted even by the Parliament because of the requirement of 2/3rd of majority of members, present and voting, of both Houses of Parliament and passed in the same session and it is just like the drastic power to be adopted.
The Constitutional framers provided the most difficult mechanism of impeachment just to preserve the prestige, power and independence of judiciary comprising of Supreme Court and High Court. It is to be remembered that the Parliament can remove the judge on proved misbehaviour or incapacity by independent inquiry and providing an opportunity of defence with right to address to the Parliament by allegedly erring Judge.
In view of the most difficult and drastic power of impeachment of a judge as provided by the Constitution, the power, prestige and independence of the judiciary is preserved. Therefore, if the Supreme Court’s or High Court’s power of contempt is allowed to be exercised against each other, the procedural safeguard of continued existence of a judge would be taken away and judge would be entirely dependent for his continued existence at the sweet will of the Supreme Court. As Madison says (quote above), the accumulation of all power by one or few would be a definition of tyranny.
The exercise of power of contempt under Article 129 of the Constitution by the Supreme Court against a High Court judge would give the Supreme Court the absolute powers to appoint (both A-O-R cases of 1993 and 2016 held the primacy of power of Supreme Court collegium in appointment of Judges), supervise and remove the High Court judge. It’s dangerous.
Also, the procedure of independent inquiry by Parliament as envisaged by the Constitution and Judges (Inquiry) Act, 1968 would be completely negated and removal of a judge by the Parliament would be rendered in to a mere formality.
5. Power of judicial review requires independent judiciary
If the Supreme Court is allowed to exercise the jurisdiction of contempt under Article 129 of the Constitution against a judge of the High Court then it would certainly undermine the power of judicial review of the High Court bestowed upon it by Article 226 of the Constitution in want of independence of judiciary of High Court or fear. The power of judicial review cannot be independently exercised by the High Court without the protection of the Parliament. The Supreme Court is supreme but not sovereign like Parliament. It should remain within its own limits to prevent the violation and safeguard of basic structure of the Constitution. Judicial review is inalienable and one of the principles of basic structure of the Constitution.
Lest we forget the caution by Thomas Jefferson, who said, “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
(The author is an advocate at the Supreme Court of India)