A Judge’s Freedom of Speech & Expression

By: Kriti Parashar

The recent Suo motu action taken by the Supreme Court of India against Calcutta High court Judge, Justice C.S. Karnan, alleging contempt of court action against him is the first time such an action has been taken against a High Court Judge that too by the highest court in the country. The verdict on the contempt proceeding remains pending, while C.S.Karnan has been asked not to continue with his judicial duties. Being a High Court Judge, his removal lies in the hands of Parliament, but the Supreme Court can withdraw his powers, stop allocation of work and issue restraining orders. Instances like this have occurred in the Indian Judicial system only a few times before this and scarcely have they resulted in a contempt verdict. One such instance was in 1972 when a District Judge, Baradakanta Misra was suspended.[1] To question his suspension, he wrote a letter to the Governor alleging mala fide upon High Court, describing it as a ‘engine of opposition’. Later, in the year 1973 he was convicted by a full bench of Orissa High Court.

The grounds on which C.S. Karnan’s contempt proceedings are based included levying allegation of corruption against several sitting and retired Supreme Court judges in a letter to the Prime Minister’s Office dated January 23, 2017 (much like the case of Justice Misra who approached the executive), staying his own transfer order and asking an explanation for his transfer in the year 2010. The former out of the two appears to be the trigger of the contempt proceedings as the latter was an already condemned act stayed 7 years back. The legal basis for contempt proceedings against him remains strong under Article 129 of Constitution of India (Supreme Court as Court of Record can punish for its contempt) and S. 16 of the Contempt of Courts Act, 1961 (Contempt by Judge, Magistrate or any person acting judicially). S. 16 of the Contempt of Courts Act states that a Judge or Magistrate or any person acting judicially can be liable for the contempt of his own court or any other court in the same manner as individuals are liable. Furthermore, as held in the case of Pritam Pal v. State of MP[2], the power of Supreme Court or High Court to punish for contempt is an inherent power under A. 129 or A. 215 and is not arising from any law. These give the Supreme Court wide powers to punish for contempt of court and preserve the dignity and respect of the judicial system in our country.

Irrespective of the verdict, what these historic instance highlights are certain more basic questions in the workings of the judiciary and the right of a judge to express himself under his guaranteed freedom in Article 19(1)(a). Around the same time last year, on January 23, 2016, Claire Gilham, a Judge in the United States made complaints on the lack of courtrooms, danger to judges and the rising workload.[3] She alleged that the Whistleblowers Protection Act should cover her complaints. She sued the Ministry of Justice who later on dismissed the complaint stating that she was not an employee of the Ministry of Justice. Similarly, In the UK in the case of Gillham v. Ministry of Justice[4] held that ‘A judge is solely an office holder and does not have a contract so cannot take recourse to S. 47 of Whistleblowers Protection act, 1996’. This highlights a higher standard of conduct expected from judges as compared to any other public department when it comes to whistleblowing some fault in their own department. The Coup d’état of the courts systematically eliminating all judges and attorneys willing to link injustice and judicial conduct is noticed when the judges blow the whistle on judicial corruption.[5] Maybe the same is necessary to safeguard the pious institution of courts, but what recourse does the judge have in case of complaints against its own system or fellow judges?

The Indian position appears similar, if not clearer, as compared to those in the United States and the United Kingdom. S. 3(i) of the Whistleblowers Act, 2014 states while defining ‘public servant’ that the same does not include a High Court or Supreme Court judge (however includes the subordinate judiciary). This implies when reading with S. 3(d) and S. 4 of the said act that any public interest disclosure cannot be made against a High Court or Supreme Court judge by any person (including a member of the judiciary). The silver lining though is that the such a complaint can be made against subordinate courts’ judges’ to the competent authority which in this case is the High Court under Section 3(b) of the act. The present system of complaint against High Court or Supreme Court judges is by a reference to the Chief Justice who deals with them by making an inquiry or appointing a panel if necessary. In such a case, Justice C.S. Karnan’s corruption allegation against judges or grievance against the transfer order should have been directed to the Chief justice and not the Prime Minister’s Office. There have been instances when the Chief Justice of India after receiving inquiry reports against a judge of the High Court or Supreme Court has recommended them to the Parliament for removal. However, when a High Court judge himself is the complainant then making such a complaint against his superiors, would require certain safeguards, like in any other public department, where at least for his benefit he would be protected as a whistle-blower – his identity not disclosed and be protected against victimisation[6] when he makes a complaint to the competent authority.

Such being the scenario of dealing with judicial misconduct in India, it appears the norm that contempt proceedings would be risked against a judge making the allegation of corruption against his fellow or senior judges or approaching the executive against judicial administrative decisions. In M.R.Parashar v. Dr. Farooq Abdullah[7], the Supreme Court stated that ‘Liberty of freedom and expression is not compounded with the license to make an unfounded allegation of corruption against the judiciary.’ In State v. Vikar Ahmed,[8]  it was opined that ‘Judges by the reason of their office are precluded from entering into controversy in columns of the public press.’ Justice C.S. Karnan on the contrary, was highlighted in the media on several occasions- be it the 2013 judgment holding sex between men and woman of legal age is equivalent to marriage (later protected by SC saying it was based on facts of the case only), asking for a Central Board of Intelligence probe into educational qualifications of another High Court Judge, alleging victimisation for being a ‘Dalit’ by other judges before Scheduled Castes Commission or saying that he would want to move to a country without any caste system and was ashamed to be born in India.

In another instance, Abbas Karmi (Lawyer of Kasab) initiated contempt proceedings against Judge M.L. Tahiliani (ADJ) when he kicked him out of the court and threatened his arrest. There have been few cases where contempt has been issued for a judge and even fewer convictions. The important question to be analysed then remains the procedure for complaint against judges and the judicial ethics or code of conduct involved. The whistle-blower act as indicated earlier covers the subordinate judiciary so a judge of the subordinate judiciary can complain against his fellow judge on corruption charges and in this case, the competent authority is the High Court.

As far as the right of the judge to express himself with regard to his own system’s working remains, it is no doubt that a judge can foul justice administration by misdemeanours while exercising his function of a judge but to what extent is his right to critique, question and complain restricted. Lord Salmond while commenting on the court power to punish for its contempt said that ‘object is not to protect the dignity of the court but to protect the administration of justice’. The Supreme Court has remarked that ‘Presiding judge embodies within him the court and his acts the administration of justice. A judicial integrated function cannot suffer any dissection nuance of High standard of rectitude in judicial administration’ (Baradakanta v. Registrar Orrisa HC[9]). In this case, the court also stated that the important test is whether vilification is of Judge as a Judge or Judge as an individual.

C.S.Karnan’s letter in reply to Supreme Court states that ‘I am also responsible judge to control such high irregularities especially corruption and malpractice….my contention is only to uproot corruption prevailing and not to spoil sanctity and decorum of court.’ Robert M. Howard remarks that judicial free speech is even limited when compared with others.[10] The extent of these limits in some countries can be found in their judicial code of conduct. Constitution of Albania in A. 137 states that a judge of HC enjoys immunity regarding opinion expressed or decision taken or exercise of functions. German Judiciary Act, 1972 in S. 39 states the principle of moderation with respect to a judges’ conduct out of his office. Russian Federation makes it punishable if a judge injures the good reputation of a judge while Austria gives even freedom to make political statements under the law on Service of Judges and Prosecutors, 1951.

Lord Atkins remarked that ‘Justice is not a cloistered virtue. It must suffer the scrutiny of outspoken comments of ordinary men’. However, when those men judge themselves, and then right to scrutiny is much restricted. It is true then that the office of a judge requires much more and code of ethics of judiciary go beyond the call of duty of an ordinary public servant. His own office is a restriction on his freedom of speech and his right to participate in the welfare of his nation, much higher than the restriction of contempt of court under A. 19(1)(a) for an ordinary citizen.

In India, the only guide to a Judges’ activities outside of his office is a Charter called “Re-statement of Values of Judicial Life” adopted in the Chief Justices’ Conference in 1999. M.C. Setalvad states that ‘A judge is public property and cannot remain hidden from public glace…he should declare his assets and liabilities scrumptiously’. Former CJI Y.K. Sabharwal while writing on ‘Canons of Judicial Ethics’ says that since a judge deals with public money, he is answerable to the public.[11] If public welfare is the highest law, there is a need to harmonise the transparency and judicial independence. What would be a proper course of action for an aggrieved judge and the procedure to be followed for such a complaint is unanswered at present for the higher judiciary and remains largely cloaked under the wide ambits of contempt law at present.

In R.V. Commissioner of Police[12] it was stated that “Those who criticise us should remember that from the nature of our duties, we cannot reply to their criticism….we cannot enter into public controversy. We must rely on our conduct itself to be our own vindication.” Former Supreme Court Judge, Justice Makandey Katju against whom contempt proceeding was initiated by the Supreme Court in November, 2016 on remarks made in a blog post against judges, in his article advocating the removal of the contempt law states that the test in contempt of court cases should be simply that – ‘Is it not letting the court function?’[13] If a Judge asks himself – “Does a corruption allegation against the judge, not let the court function?” his answer and opinion to this may be an answer to the question of the right of judges to be whistle-blower judges, outspoken critics and reformers of the judicial system.

[1] Baradakanta Misra v. Mr. Justice Gatikrushna Misra 1974 AIR 2255.

[2] 1992 AIR 904, 1992 SCR (2) 864.

[3] Owne Bowcott  ‘Whistleblower Judge: Austerity policies have made courts dangerous’ (The Guardian UK) <https://www.theguardian.com/law/2016/jan/23/whistleblower-judge-austerity-policies-have-made-courts-dangerous> accessed 7 March 2017.

[4] UKEAT0087/167.

[5] ‘When Lawyers or Judges blow the whistle on Judicial Corruption’ <http://www.njcdlp.org/whistleblower-protection-c12t3&gt; accessed 7 March 2017.

[6] Whistleblowers Protection Act 2014, s 11.

[7] (1984) 1 CrLJ 433.

[8] AIR 1945 Hyd 175.

[9] AIR 1974 SC 710.

[10] Robert M Howard ‘Limitations of Judicial Free speech’,  22-23, Justice System Journal, 350-353.

[11] Y K Sabharwal, ‘Canon of Judicial Ethics’ <http://www.tnsja.tn.nic.in/article/Cannons%20of%20Jud%20Ethics.pdf&gt;accessed 7 March 2017.

[12] (1968) 2 QB 150.

[13] Markandey Katju, ‘It’s Time To Amend Law on Contempt of Court’ (The Times of India Blogs) <http://blogs.timesofindia.indiatimes.com/satyam-bruyat/its-time-to-amend-law-on-contempt-of-court/> accessed 7 March 2017.

(Kriti is currently a student at Indian Law Institute.)