I salute the judges of the Karnataka High Court for their humanitarian approach. Like Abou Ben Adhem (in the poem by James Hunt) “May their tribe increase!”

Written by Fali S Nariman | Updated: May 22, 2020 9:30:45 am

The Karnataka Government had argued — though unsuccessfully — that the high court cannot intervene because the Supreme Court, when directly approached under Article 32, had refused to intervene on the issue of migrants walking home due to the lack of transport arrangements.

A report from Karnataka in The Indian Express of May 20 reads like a breath of fresh air: A division bench of the High Court of Karnataka, presided over by its chief justice, questioned the state government’s decision not to fund the travel of migrant workers if their home states do not deposit funds for train fares. The bench also required the state government to clarify the legality of its refusal to pay the fares of migrant workers from states like UP, Bihar and Jharkhand despite the Centre laying down rules for reimbursement from destination states. It asked the government whether it wanted to take a stand that a migrant worker who had no income and was not in a position to pay the railway fare would not be allowed to travel home by the Shramik Special trains.

The Karnataka Government had argued — though unsuccessfully — that the high court cannot intervene because the Supreme Court, when directly approached under Article 32, had refused to intervene on the issue of migrants walking home due to the lack of transport arrangements. Earlier, three orders separately passed by different benches of the highest court had declined to give any direction to the majoritarian government at the Centre to make transport available to migrant workers; it also failed to suo motu implead the concerned states so as to enable the apex court to issue directions to state governments to ensure humanitarian relief and so put an end to the degrading spectacle of starving migrant workers walking hundreds of miles to their homes.

The highest court also failed to notice that it was a soft-hearted Parliament (way back in 1979) that had enacted a special law regulating the employment and conditions of service of “migrant workers”: A class of oppressed persons deserving of protection of the state where they are employed.

That judges of high courts across India are soft-hearted got established during the internal Emergency of June 1975 when judges in six high courts in the country, namely the HCs of Delhi, Bombay, Madhya Pradesh, Allahabad, Karnataka, and Rajasthan refused to accept that oppressive laws and orders were no longer reviewable by courts. However, these judgments of six high courts were overruled by the Supreme Court of India in ADM Jabalpur AIR 1976 SC 1207 by a Constitution Bench of five judges (4:1). But ADM Jabalpur is no longer good law. It, too, stands overruled by a nine-judge bench of the Supreme Court (Puttaswamy vs Union of India: (2017) 10 SCC 1).

But, to me, a most disturbing trend in recent times is another 2017 decision of the highest court. In May 2017, seven judges of the Supreme Court of India, invoking its contempt jurisdiction under Article 129 punished a sitting judge — Justice C S Karnan — of one of India’s oldest superior courts, the High Court of Madras, by sending him to jail for contempt of the Supreme Court (reported in 2017 (1) SCC 1). This had never happened before and I venture to hope that it never happens again!

True, Justice Karnan had persistently defied judgments and orders of the Supreme Court. He had also indulged in scurrilous, irresponsible and un-substantiated allegations — against judges — not only of the Supreme Court but also against the judges and the chief justice of his own high court — the High Court of Madras. The justices of the Supreme Court of India were (justifiably) very angry. But as had been said before, “If, as a judge, you are tempted to be angry, you must remember the great Lord Eldon, who sat for twenty-five years as Lord Chancellor of England; in 1787, as plain John Scott, the lawyer, he argued a case in the Equity Courts — Dering vs. Earl of Winchelsea — thirty-five years later the case was cited to him when, as Lord Eldon, he was presiding in the Court of Chancery. Eldon said he remembered the case: ‘…and very angry I was with the decision; but I have lived long enough to find out that one may be very angry and very wrong.’”

The decision in Justice Karnan’s case is “very wrong”. It is a one-off decision which I hope will never be replicated. Under our Constitution, high courts are not subordinate to the Supreme Court — although decisions of the Supreme Court are binding on the high court. A judge of a superior court under the Constitution who is vested with the power to commit for contempt of court cannot himself or herself be committed for criminal contempt as defined in the Contempt of Courts Act, 1971. In fact, this had been previously so held by a full bench of the High Court of Patna in 1981 (AIR 1981 Patna 65), and then reiterated by a bench of three judges of the highest Court in 1988 (1988 (1) SCC 1): Alas, the judgments of the Patna High Court (1981) and of the Supreme Court (1988) were not even noticed, much less dissented from, in Karnan’s case!

I salute the judges of the Karnataka High Court for their humanitarian approach. Like Abou Ben Adhem (in the poem by James Hunt) “May their tribe increase