TO FREED FROM JAIL SRI C S KARNAN
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To, 1.His Excellency Shri. Pranab Mukharji, President of India, Delhi
2. Sri Narendra Modi, Prime Minister of India, Delhi
It has become imperative intervention in to the matter of Sri C S Karnan, in an imprisonment unparallel in the legal history, since the Hon'ble Chief Justice of India (CJI) was pleased to take suo motu cognizance of a letter dated 23rd January, 2017 addressed by the Petitioner to the Hon'ble Prime Minister seeking an investigation into allegations against corruption by certain Judges of the High Court of Judicature at Madras made by Sri C S Karnan, and to constitute a Bench of seven Judges to hear the same and by order dated 9th May, 2017 was pleased to convict Sri C S Karnan, for criminal contempt of Court and sentence him to undergo imprisonment for six months. Sri C S Karnan, with utmost respect submits that the entire proceeding at the hands of the CJI in constituting the Seven-Judge Bench finally culminating in his conviction and sentence, as aforesaid, is without jurisdiction. The reasons for the same are manifest.
2. Pursuant to the above said order dated 09/05/2017, Sri C S Karnan, had been taken into custody on 20th June, 2017 and since been lodged in prison at Kolkotta, West Bengal to undergo a sentence and imprisonment for a period of six months, for which he is yet to know the reasons, the charges therein and even the judgment under which he is subjected to undergo the punishment.
3. Sri C S Karnan, had been appointed by His Excellency the President of India by warrant as a Judge of the High Court of Madras and was later transferred to the High Court of Judicature at Calcutta. Under the constitutional scheme, the power of appointment of Judges to the Supreme Court and High Courts is invested in the President of India – in other words, in the executive, with the only requirement that it be done with the consultation of the Chief Justice of India (CJI). By the judgment in the Judges-2 case, the Supreme Court arrogated to itself the said power. By the judgment in Judges-3 case, the concept of collegium was further institutionalized. Even when the executive appointed Judges to the higher judiciary, the appointees were from a narrow pool. The collegium system meant the pool to be still narrowed, namely, the kith and kin, nephews and juniors of sitting and former Judges of the Supreme Court and High Courts, so too of celebrated lawyers, Chief Ministers, Governors et all, and a few first generation lawyers who are all politically connected or are close to big industrial houses, causing total destruction of democratic legitimacy; so too diversity in judicial appointments. One Suraz Trust sought a review of the judgments in Judges-2 and Judges-3 cases. The case was admitted, a larger Bench was directed to be constituted to hear the case; but the said petition was subsequently dismissed, where the Ld.Attorney General was given liberty to raise maintainability at the subsequent and later opportunity, without answering any of the legal and constitutional questions raised in the said petition, which Sri C S Karnan, consider to be the Judges-4 case.
4. There was near unanimity among all concerned that the collegiums system has failed to achieve its aim, namely, appointing the most deserving, meritorious and eligible candidates as Judges. The remedy prescribed by the Government was a NJAC. The Constitution was amended to make the NJAC a reality, but the Constitution amendment was struck down as unconstitutional by a Five-Judge Bench presided over by the present CJI. The NJAC was in the realm of a legislative policy; it was not justifiable at all. Yet, the Ld.Attorney General did not question the maintainability of the so-called PIL at the hands of SCAORA challenging the NJAC Act,2014. The NJAC Act was struck down as unconstitutional and the collegium system has been restored. Things are back to square one once again; appointments to the august office of the Judges of the Supreme Court and High Courts continue to be made without any element of transparency. The reality today is that the power of appointment of Judges to the higher judiciary is with the collegium of the senior most five Judges of the Supreme Court. Judges appoint themselves and we are the only country in the world to do so.
5. The Seven-Judge Bench of the Supreme Court by its order dated 8th February, 2017, without any notice or affording any notice, divested to Sri C S Karnan, of his judicial and administrative work. The notice dated 8th February, 2017 issued by the Supreme Court, which is a short one containing 7 sentences, by which the Petitioner was literally removed from his office. It meant, removal from his constitutional office, which only the Parliament can do. Removing a Judge from his office is not a judicial function; it is an administrative one. That power is in the exclusive province of the Parliament by impeachment. In accordance with the Article 217(1) (b) read with Article 124(4) of the Constitution, a Judge of the Supreme Court or of a High Court can be removed from office for proved misconduct only by the President upon a motion which has received the assent of both the Houses of the Parliament with 2/3rd of the members present and voting. The Seven-Judge Bench of the Supreme Court by its order dated 8th February, 2017 removed the applicant from his office by divesting him of his judicial and administrative work/powers in contravention of the express constitutional mandate and provisions. The only consolation is that he is not deprived of his salary and perks. By its order dated 9th May, 2017, the Supreme Court ordered him to be jailed for contempt of Court which means that he is also divested of the perks and privileges he enjoyed, in violation of the Constitutional protection guaranteed under Article 221 of the Constitution, where the same is being curtailed to his disadvantage. It is the universal principle that the appointee can only be removed from his office by the appointing authority, and in no way by his peers, as allowing the same will lead to chaos deviated from the constitutional harmony.
6. The informed common men of this country are concerned about the manner in which he is removed from his office and sentenced to imprisonment. It meant arrogation of the power of removal of a Judge of a High Court by the Supreme Court. It has also meant a fatal blow to the concept of independence of Judges of the High Courts and of the Supreme Court. If the manner in which he is removed from office remains unquestioned, tomorrow Judges and Chief Justices of High Courts or even Puisne Judges of the Supreme Court could be removed from their office by the Supreme Court, which will mean the fatal blow to the independence of judiciary.
7. To repeat, Sri C S Karnan, was convicted without framing a charge, without being told the allegations constituting the charge, without a lawyer to defend him to say his side of the story. Even a devil is entitled to a hearing, an advocatus diabolic, the alleged contemnor, is entitled to know the reasons for which he is convicted; he is entitled to a copy of the judgment; no judgment could have been pronounced in his absence; no conviction could be imposed without giving an opportunity to the convict a say in the quantum of sentence; even where he is convicted in terms of the proviso to Section 12 of the Contempt of Courts Act, 1971, he is entitled to a say as to the sentence to be imposed; and he is liable to be discharged if he were to make even a conditional apology. All these procedural safeguards are in direct violation by the order of the Supreme Court, by which the applicant is undergoing imprisonment.
8. Section 15 of the Act invests concurrent jurisdiction in the Supreme Court and High Courts. If the said Section is to be understood as one investing jurisdiction on the supreme Court to initiate contempt of Court proceeding against a Judge of the High Court, then the High Court being not subordinate to the Supreme Court could also be said to be invested with the jurisdiction to invoke contempt of Court proceeding against a Judge of the Supreme Court, a proposition which is fraught with dire consequences. In short, under the constitutional scheme and interpretation of the Act in consonance with the concept that a High Court is not subordinate to the Supreme Court and is as independent as the Supreme Court itself, subject to the rider that decisions of the High Court’s on judicial side are amenable to appeal to the Supreme Court, a contempt of Court proceeding could not have been instituted against Sri C S Karnan, at all. Sri C S Karnan, is, therefore, entitled to a declaration that the very notice dated 08/02/2017 issued against him under the Act and all further proceedings in furtherance thereof, culminating in the order dated 9th May, 2017, are unconstitutional and void. Sri C S Karnan, a Judge of the High Court of Calcutta, is not under any disciplinary jurisdiction of either the CJI or the Bench of Seven Hon'ble Judges constituted by the CJI, as in the instant case.
9. Sri C S Karnan, removal from his office by the Supreme Court by its order of conviction and sentence dated 9th May, 2017 is absolutely unconstitutional. A substantive Writ Petition in challenge of the said order and challenging the virus of the Contempt of Courts Act,1971 has been instituted in the Supreme Court; so too an application to recall the said order, but the said proceedings are refused to be listed in the open Court. The Registry rejected them without hearing his lawyer and without notice. Accordingly, on the Sri C S Karnan, behalf, a memorandum dated 17th May, 2017 under Article 72 of the Constitution has been preferred to His Excellency, the President of India, seeking suspension of the sentence and seeking intervention of His Excellency.
10. It is a fundamental principle of law, as enunciated in Section 273,278,281,291, of The Code Of Criminal Procedure, 1973, that no trial could be conducted in the absence of an accused, much less he could be convicted and sentenced. Even if the accused has failed to appear, it is the duty of the prosecution and the Court to ensure the presence of the accused. Trial, conviction and sentence in the absence of an accused and without securing his presence are unknown to criminal jurisprudence.
11. It is a fundamental principle of law that if an order of a Court, even of the highest Court of the land, is without jurisdiction, in violation of the principles of natural justice and in ignorance of express statutory provisions, any, in other words, vitiated by errors apparent on the face of the record, such an order is a nullity, one which never ever existed in the eye of law, and the same could be challenged whenever and wherever is tried to be implemented. This is the essence of the doctrine of nullity which finds enunciation in A.R. Antulay v. R.S. Nayak (cited supra), wherein it was held that the order of the Five-Judge Constitution Bench of the Supreme Court requesting the Chief Justice of the High Court of Bombay to designate a Judge of the High Court to conduct the trial against Shri.A.R.Antulay, while in terms of the Prevention of Corruption Act the trial could only have been conducted by a Judge of the Designated Court of the rank of a District Judge, from whose decision an appeal will lie to the High Court, was a nullity and could be impugned before the High Court. Shri.A.R.Antulay adopted that course of action which, though the High Court declined, was upheld by the Supreme Court, holding that an order of even a Constitution Bench of the Supreme Court, if rendered void ab initio, its validity could be questioned even before a forum which is judicially subordinate to the Supreme Court.
12. The supremacy of the Parliament, the majesty of law and independence of judiciary are of paramount importance. Therefore, it is the sacred duty of your Excellency to pay its anxious consideration to the constitutional crisis, as aforesaid, and act in no loss of time to protect the majesty of law, independence of the judiciary and, above all, the supremacy of the Parliament in matters which fall within its exclusive domain, therefore, entitled to a declaration that the very notice dated 08/02/2017 issued against him under the Act and all further proceedings in furtherance thereof, culminating in the order dated 9th May, 2017, are unconstitutional and void. For that reason Sri C S Karnan, has moved the writ petition before the Supreme Court, a recall application of the said order and a petition under Article 72 of the Constitution before His Excellency the President of India, who is the appointing authority of the applicant and the other High Court and Supreme Court Judges as well, for the suspension of sentence till the procedural irregularities are corrected and a reasoned judgment is passed.
13. The imprisonment which the applicant undergoes as of now is without knowing the reasons for which he is imprisoned, and in violation of fundamental, constitutional, statutory and equitable rights invested in him. On this junction, it is requested that your intervention is must and should and constitutional supremacy restored. Therefore, it is in the interest of justice and Nation and protection of independent judiciary. And for the reasons stated hereinabove, it is most respectfully prayed that you’re Excellency, the President of India, to intervene this matter of, Shri Justice C.S. Karnan in the interest of justice and equity.
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