While there have been many cases of courts passing gag orders violating press freedom—it was done in the case of the Amar Singh tapes, on movement of troops to Delhi and the sexual harassment case against Justice Swatanter Kumar—the Supreme Court has often quashed or overturned such bans. Thus, it was quite worrying to see the SC issuing such an order on media reporting any further reactions from errant judge Justice CS Karnan. More so, when the court itself had directed a mental check-up of Karnan, a sitting judge of the Kolkata High Court. In no way can reporting Karnan’s comment lead to a national security concern or a miscarriage of justice, and hence rationale for a gag order on the media is not immediately clear.
The gag order, however, is the least of the problems. Given how the issue has turned into a television drama, what is most disconcerting is that the SC seems unable to control a member of the judiciary without engaging in an unseemly war of words and sentencings. The Karnan episode also represents a failure of the collegium system—Karnan is a product of it as he was approved by the Madras HC collegium from which two of the judges went on to become Supreme Court judges. The apex court has been resistant to the idea of a transparent National Judicial Appointments Committee, even though at least one of its judges is against the collegium system. In its second NJAC judgment, in December 2015, the Supreme Court had observed on the need to make the collegium system more transparent, given people have time and again flagged issues such as the ‘uncle judge’ phenomenon, the collegium’s complete lack of record-keeping, etc. Eventually, if SC is opposed to NJAC, it will have to find ways to make collegium transparent. Many of the issues raised in the Karnan case, starting from his allegations of corruption and issue of appointments, are rooted in this.