New Delhi, May 14: The seven-judge constitution bench dealing with Justice C.S Karnan's contempt row is unlikely to assemble soon, raising the possibility of the beleaguered Calcutta High Court judge remaining underground indefinitely, as the Supreme Court is on vacation and may take more time to decide his plea to recall his unprecedented six-month jail term.
Since May 9 when the sentence was handed down by the bench, the judge has been evading arrest. Calcutta police have made several futile attempts to arrest him, though his advocate claimed he was in Chennai.
Justice Karnan was convicted and sentenced for repeatedly writing to the Prime Minister, President and successive Chief Justices of India accusing several Madras High Court and two sitting judges of Supreme Court of either corruption or misconduct. He also held news conferences and made statements reiterating his allegations, drawing the ire of the Supreme Court.
On Thursday and Friday last week, Justice Karnan had tried through his advocate Mathew Nedumpura to get a stay on his arrest but could not succeed as current Chief Justice of India J.S Khehar insisted the judge should first file a formal petition, after which a decision would be taken on considering his request for a stay on the arrest and recall of the May 9 order.
However, sources have told The Telegraph that the seven-judge constitution bench headed by CJI Khehar is unlikely to come together in the near future as the Supreme Court is on summer vacation and will reopen only on July 3.
The bench that punished Justice Karnan comprised the CJI, and Justices Dipak Misra, J. Chelameshwar, Ranjan Gogoi, Madan B Lokur, P.C. Ghose and Kurian Joseph.
While the CJI is currently heading another five-judge constitution bench hearing the constitutional validity of the triple talaq during the vacation, most other members of the seven-judge bench that dealt with Justice Karnan's matter - like Justices Chelameshwar, Gogoi, Lokur and Ghose - are out Delhi.
One of the judges, Justice Ghose, is due to retire on May 27, as a result of which the bench will have to be reconstituted. Justice A. K Sikri, the next senior-most among the 28 apex court judges, is likely to replace Justice Ghose on the bench.
Nedumpura, Justice Karnan's lawyer, had also claimed last week that that given the sensitivity of the issue involved, several "advocates-on-record" (AOR) of the Supreme Court had declined to file the petition on his behalf.
"About 30 AORs have refused to file the petition. Two backed out after initially drafting it," the advocate had told the court on Thursday. Under Supreme Court rules, only designated AORs can file a petition. The AORs are a special class of advocates designated as such after they clear a written examination conducted by the apex court to test their proficiency in law, drafting, filing and rules. There are nearly 300 AORs in the Supreme Court.
As the AORs refused to be part of any petition filed by Justice Karnan, CJI Khehar had used his discretion to give his advocate, Nedumpura, who is not an AOR, the right to file the Calcutta judge's plea without routing it through an AOR.
With little possibility of the seven-judge bench assembling during the vacation to review its order, Justice Karnan is banking on a 1980 ruling by a seven-judge constitution bench of the Supreme Court in the A.R Antulay vs S.R Nayak case. The ruling said that if an order is passed in violation of any law by any court, including the Supreme Court, it can be junked even by a subordinate court like a high court or a trial court.
Justice Karnan's recall plea claims the May 9 order was illegal, contends that he cannot be punished for contempt and insists that only impeachment proceedings could be initiated against him.
His counsel Nedumpura had argued before the CJI last week that in the absence of the seven-judge bench, a two-judge bench could review the order passed by the larger panel. The argument is unlikely to find favour with the apex court.
