Senior lawyer K.K. Venugopal had advised the court to ignore Justice Karnan’s orders since no one was taking them seriously and wait till he retires in June. But Attorney General Mukul Rohatgi wanted strict action against the Calcutta high court judge.
New Delhi: The Supreme Court’s order directing the medical examination of Justice C.S. Karnan without first ascertaining his consent is fraught with serious improprieties, and even violations of the constitutional guarantee of right to personal liberty. The direction was issued by a seven judge bench after an hour-long hearing on Monday in a contempt matter involving the Calcutta high court judge.
Later in the day, Justice Karnan reacted to this order by not only refusing to submit to any medical examination but also by issuing an order of his own directing the psychological examination of Chief Justice of India J.S. Khehar and the rest of the seven-judge bench. The Supreme Court’s order was an “insult against an innocent Dalit judge”, he said.
In displaying an inclination to escalate the ongoing confrontation, the apex court appears to have gone along with the prescription suggested by attorney general Mukul Rohatgi. During the hearings on Monday, he had suggested to the bench that those within the judiciary who are guilty of disrespecting the institution must be dealt with sternly. “If you don’t act now, what will happen later?”, he asked. The court has been more than patient, and it is time to restore public confidence in the judiciary for the sake of upholding the rule of law, he told the bench.
Rohatgi referred to the “outlandish” orders which Justice Karnan has been passing against the Supreme Court judges and claimed this constitutes aggravated and unacceptable contempt. Interpreting Justice Karnan’s statements to the media as interference with the court of justice, he urged the bench to take stern action against him.
On the other hand, senior counsel K.K. Venugopal, who is assisting the court, told the bench that nobody takes Justice Karnan seriously, and if he can’t be taken seriously, what purpose would be served if he is held guilty of contempt of court. “He is not a person who is in a position to decide what is or what is not correct.” Venugopal suggested that the right course would be to ignore him and drop further action, letting him retire in June, when he would reach the age of superannuation.
Chief Justice J.S. Khehar, who presided the seven-judge bench, however, was in no mood to relent. He said that anybody would have the excuse of being unwell – and therefore use it as a justification, to defy the authority of the court – if Justice Karnan is allowed to get away with contempt of court on the grounds of his perceived mental illness.
Curiously, the order uploaded on the Supreme Court’s website is silent on Venugopal and Rohatgi’s submissions, nor does it explain why the bench preferred Rohatgi’s formulation to Venugopal’s.
Although Justice Karnan’s so-called orders against the seven judges on the bench, and Justice R. Banumathi, whom he added as the eighth Judge, have been nothing more than a source of mirth to readers, the Supreme Court appears to have taken them seriously, by stating as follows:
“Ever since the initiation of these proceedings, he has been expressing further disrespect to this court, he has also been making press statements with abject impunity. However, after the last order dated 31.3.2017, he is stated to have issued orders (purported to be judicial) against the members of this bench, as also, another hon’ble judge of this court. Those orders have been received in the registry of this court, and are part of the present compilation. In order to ensure, that no court, tribunal, commission or authority takes cognisance of the orders passed by Shri Justice C.S. Karnan, we hereby refrain all courts, tribunals, commissions or authorities, from taking cognisance of any orders passed by Shri Justice C.S. Karnan, after the initiation of the proceeding by us on 8.2.2017.”
The bench, on an assumption that Justice Karnan may not be in a fit medical condition to defend himself, also directed the director, health services, Government of West Bengal, to constitute a board of doctors from Pavlov Government Hospital, Kolkata, to examine him on May 4 and submit a report on whether he is in a fit condition to defend himself. The bench also directed the director general of police, West Bengal, to assist the medical board, in this regard.
The medical board has been asked to submit its report to the Supreme Court on May 8. In the meantime, Justice Karnan has been asked to respond to the notice issued to him, “if he is so advised”.
Order contradicts Mental Health Act
Even as the bench has posted the case for further hearing on May 9, doubts have been expressed by observers on whether Justice Karnan can be subjected by the Supreme Court to a medical examination without his consent. Justice Karnan himself has reportedly refused to subject himself to such medical examination, and has questioned the authority of the Supreme Court to assume that he suffers from mental illness.
Worryingly, the bench’s order appears to be inconsistent with the Mental Health Care Act, 2017 – which defines “informed consent” under Section 2(1)(i) as follows:
“Informed consent” means consent given for a specific intervention, without any force, undue influence, fraud, threat, mistake or misrepresentation, and obtained after disclosing to a person adequate information including risks and benefits of, and alternatives to, the specific intervention in a language and manner understood by the person”.
Although the Supreme Court’s order does not use the expression “mental illness”, the fact that the proceedings referred to it in the context of his defiance of the court’s previous orders, cannot be ignored. Section 3(2) of the Act says:
“No person or authority shall classify a person as a person with mental illness, except for purposes directly relating to the treatment of the mental illness or in other matters as covered under this Act or any other law for the time being in force.”
Section 3(3) of the Act says:
Mental illness of a person shall not be determined on the basis of
- political , economic, or social status or membership of a cultural, racial or religious group, or for any other reason not directly relevant to mental health status of the person;
- Non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community.
Section 4(1) of the Act further says:
Every person, including a person with mental illness shall be deemed to have capacity to make decisions regarding his mental health care or treatment if such person has ability to
(a) understand the information that is relevant to take a decision on the treatment or admission or personal assistance; or
(b) appreciate any reasonably foreseeable consequence of a decision or lack of decision on the treatment or admission or personal assistance; or
[c] communicate the decision under sub-clause (a) by means of speech, expression, gesture or any other means.
Moreover, a constitution bench of the Supreme Court in Selvi v State of Karnataka, has declared that narco tests, and lie detectors can only be administered with consent of the accused, in order to meet the requirements of Articles 20(3) and 21 of the Constitution.
If that is the high standard which the court has set for an investigation of a crime, directing Justice Karnan’s medical examination without his consent – under the unstated assumption that he might be suffering from mental illness, so as to make him incapable of defending himself in the ongoing contempt proceedings – appears to be a disproportionate response from the highest court.
Venugopal’s alternative submission to the court – that it treat Justice Karnan as someone who is challenging its authority, perhaps due to ignorance of his own powers as a high court judge, and be indifferent to him, till he retires from office – would not only prevent Justice Karnan from getting further publicity to himself, but bring the ongoing ugly spectacle involving the apex court, to a speedy halt.