Karnan and Kejriwal Show… Can we handle such exceptional constitutional emergencies?

Two events dominated the news rooms yesterday both of which make us sad that the bizarre nature of some individuals are forcing others to consider equally drastic measures to avoid further disasters. Ultimately the society stands divided and bruised.

The first event was the decision of the Supreme Court of India to declare Justice Karnan, a sitting Judge of Kolkata High Court guilty of Contempt sentencing him to six months of imprisonment. Court ordered his immediate arrest.

Kolkata Police ignored the order and did not act in time. This allowed Mr Karnan to leave Kolkata and go to Chennai. Now he is under the Chennai Police jurisdiction and Kolkata police can say that they were not able to execute the order of the Supreme Court. TN Police may find their own excuses not to arrest him and in the end, Supreme Court will be considered as an “Ineffecive Institution” that cannot enforce a simple diktat of causing arrest of its own convict.

The second event was the demo of a self constructed EVM lookalike in the Delhi assembly and showing how it could be manipulated. This was to discredit the Indian election system and undermine the democratic system in India.

The demo was done within the legislative assembly session so that no action can be taken on “Mis-representation” or “Defamation” without the defense of “Privileges of an MLA”. Election Commission will therefore not be able to take any action on Mr Kejriwal or his party for seeding an element of doubt in the minds of people that our election system is rigged.

On a single day therefore the two events have denigrated two apex institutions of our country which should be handy for India-baiters to dub our democracy and judiciary as a farce.

Both Mr Karnan as well as Mr Kejriwal had an agenda of their own, parts of which can be justified. Mr Karnan can say that he was exposing corruption in higher judiciary and he was targetted in counter action. Mr Kejriwal can say that he is trying to rid the election system of a possible vulnerability.

However, the damage that both are doing to the overall system is some thing that needs to be recognized as an “Irreversible Damage”. At the same time, there are enough reasons to believe that both these crusaders have themselves created a situation where there are leaving no choice for others to take drastic decisions.

If others try to follow propriety and honour traditions of decorum, then we may see far worse days ahead. There is therefore a need to cut our losses and take corrective measures before things go more and more out of hand.

In the case of Mr Karnan, who is himself considered as a “Constitutional Authority”, many legal luminaries consider that Supreme Court does not have a jurisdiction to order arrest or curtail his judicial powers. They suggest that the only way his powers can be taken away is through a process of “Impeachment” knowing fully well that he would retire much before such action can be taken.

At the same time, supporters of Mr Karnan forget that it was even more unconstitutional for Mr Karnan to don his Judicial hat and pass orders of arrest and five year imprisonment on 7 senior judges of the country including the Chief Justice of India. These seven judges together have the powers under the constitution to even amend the Constitution itself. To argue therefore that they donot have the powers to order disrobement of Mr Karnan is “hair splitting”.

Also, in case no restraining action is taken, Mr Karnan could pass other bizarre orders including arrest of the Prime Minister and perhaps even the President of India and claim that he has all the powers to himself. It was therefore inevitable that the Supreme Court had to move and take action which can be called one of the “Rarest of Rare” situations.

Mr Karnan has not only denigrated the superior Judiciary but also brought “Caste” into judicial decisions and for this alone he deserves to be dumped into oblivion for ever, though it is impossible to undo the seeds of doubt he has injected in the minds of the citizens of India that judges are always looking at the Caste and Religion of the litigants and the advocates. This is a great disservice to all the honest judges who have treated the profession as a noble responsibilities beyond the normal discussions of caste, religion or politics.

I am aware that many of my friends in the Legal circles would not be happy with this view but the situation is similar to what a doctor faces when a limb has to be amputated to save the body.

Now the Supreme Court has to demonstrate that they can cause the arrest of Mr Karnan even if he has run away to a sanctury and may go into hiding until the heat subsides. Otherwise how can Supreme Court think that persons like Mr Vijay Mallya will respect the Court?

Coming to Mr Kejriwal’s theatrics, he used one of his MLAs to demonstrate that EVMs can be hacked. But what the AAP MLA Mr Saurabh Bharadwaj has done is to construct a device of his own and demonstrate how it can be hacked. This is a complete fraud enacted to fool the public. The objective is to create a fear among the public that our election system is unreliable and is manipulated by persons in power.

Mr Bharadwaj has not used a genuine EVM but his demonstration was meant to present his device as a genuine machine. There was therefore an attempt to impersonate the fake EVM as the real EVM. Using such a fake device, he is demolishing the foundation of democracy in India. The EVM system which is being hailed as a model by many other nations, is being denigrated so that India could suffer an economic loss and reputation loss in the global market.

All this together should qualify the demo as a punishable offence. It can be debated if his action could even be considered as an act of “Cyber Terrorism” since he used a “Computer Contaminant” to manipulate a “Lookalike EVM” and his intention was to give an impression that he is demonstrating the “Hacking of a genuine EVM”. Though he may be unsuccessful, it is definitely an “Attempt” to create a fear in a section of the society that our democracy has been undermined by the Election Commission at the behest of the ruling party.

However, since the demo was conducted within the precincts of the Assembly session, it may be constitutionally improper to take legal action except with the permission of the Speaker which ofcourse would not be forthcoming.

This again means that if legislative power is in the hands of people like Mr Kejriwal, they would even commit a murder inside the Assembly and exercise their privilege to bar investigation.

It is therefore necessary for the Election Commission and the Government of India to devise a means by which Mr Saurabh Bharadwaj is brought to book for an “Attempt to Destabilize the Democracy of India” under the appropriate legal provision.

Unfortunately neither the Supreme Court may be able to cause the arrest of Mr Karnan nor the Election Commission may be able to take action on Mr Surabh Bharadwaj. It is the Citizens of India who will be kept wondering that when people with power lose their mental balance, they will become the greatest risks to the country and our system is unable to control such mavericks.

I understand that in the US constitution, there is a provision that if the President is suspected to have lost his mental balance, some of his subordinates such as the Secretary of State, the Vice President, the Speaker and the Chief Justice may take a collective decision to remove the Presidential powers.

We need such a power to be exercised now to remove Mr Arvind Kejriwal and Mr Karnan from their respective constitutional positions without the usual procedures such as an “Impeachment” or “No Confidence Motion”.

May be it is time to consider suitable constitutional amendments to make emergent decisions possible in emergent situations…. without of course re-concentrating the powers in another single office including the Prime Minister or the President.

May be the President, Prime Minister together along with the Defence Minister,Chief of Defence, Chief Election Commissioner, Chief Justice of India, Speaker of the Loksabha, and the leader of the recognized opposition party, etc could be declared as a collective body to take such decisions on which the Constitution currently is inadequate to address.

….A point for debate


Update: 11th May 2017

As anticipated, Mr Karnan is playing hide and seek and Police parties are shuttling between Kolkata, Chennai, Tindivanam (TN) and Kalahasti (Andhra) to locate him. In the meantime it is reported that he would be filing a petition challenging the order of the Supreme Court in the Supreme Court itself and has successfully executed an affidavit before a notary in Chennai without the Police being able to locate him.

The game perhaps is to extend this hide and seek, filing a review petition, seeking a stay etc until he retires or until the Supreme Court gets tired. Mr Karnan with all his experience is teaching people like Mr Vijay Mallya some tricks.

We would not be surprised if he turns into a successful practicing advocate after his retirement and replace the aging Mr Ram Jethmalani in defending Mr Kejriwal pro bono.

Also Read:

Justice Karnan Esclates fight

A Sad day for Indian Judiciary

Cyber Law Compliancy and Electronic Voting

EVM Controversy

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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