The Contempt Jurisdiction of Supreme Court and Constituent Assembly Debates

In 2011 Justice Karnan complained to the National Commission for Scheduled Castes of caste based discrimination by his brother judges of the Madras High Court. A series of exchanges between him and the Supreme Court ended with him sentencing a Supreme Court bench (including the Chief Justice of India) to 5 years of rigorous imprisonment for atrocities under The Scheduled Castes And The Scheduled Tribes (Prevention Of Atrocities) Act, 1989. In response on May 9, 2017 the Supreme Court sentenced Justice Karnan, a sitting judge of the Calcutta High Court, to six months imprisonment for contempt of court.

This is the first time where a sitting High Court Judge has been found guilty of contempt of court and sentenced under the Contempt of Courts Act, 1971.  Indira Jaising argues that this order sets a “dangerous precedent” as the Supreme Court does not have a “discipline jurisdiction” over the High Court and that the contempt power must not be used to circumvent Article 124 and 217 of the Constitution. Smita Chakraburtty suggests that while “erratic behavior” may indicate mental incompetence and be a ground for impeachment, it shouldn’t be the “bedrock of contemptuous reprisals.” Many others recommend that the Supreme Court should have recommended to Parliament to initiate impeachment proceedings against Justice Karnan.

Notably in the Constituent Assembly Debates, draft Article 108 (now Article 129) initially did not expressly provide for contempt jurisdiction. While the debates on draft Article 108 focused on the seat of the Supreme Court there are two important exchanges on the contempt power. First, Dr. B.R. Ambedkar on 27,  May 1949 moved an amendment to draft Article 108 to include the Supreme Court’s power to punish for contempt of itself. He noted that court of record “is a court the records of which are admitted to be of evidentiary value and they are not to be questioned when they are produced before any court”. He recognized that while a court of record inherently has power to punish contemnors, the English Courts derived their contempt jurisdiction through the common law. Hence, to avert future controversy, he explicitly provided for contempt jurisdiction in draft Article 108.

A second intervention on the scope of the contempt power arose ten days before the Constitution was adopted. R.K. Sidhva on 17, November 1949 expressed concern that the Judiciary must respect the principle of separation of power while exercising the dual role of the judiciary as prosecutor and judge in contempt cases. This intervention did not draw an elaborate response and the Supreme Court will now work this out in the Karnan case.

Kruthika R  is an Associate Editor of the Constitutional and Civic Citizenship Project at CLPR

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