New Delhi: A seven-judge bench in the Supreme Court on Monday ordered for a psychological examination of Calcutta High Court judge C S Karnan. The order directs the DGP, West Bengal to make sure tests are carried out by a panel of doctors in Kolkata on May 4. While there is a positive direction to the top cop to get Justice Karnan examined, can the judge be forced to undergo the tests?
Consider this:
* An accused in a murder or rape case can’t be compelled to stand for the test identification parade (TIP) when victims or eye-witnesses are called upon to identify the assailant
* Criminal laws don’t allow police to forcibly get finger prints or even a handwriting sample of accused
* Lie detector tests can’t be carried out without the accused according his consent
In all the instances cited above, when accused refuse to participate in the TIP or decline to give samples, adverse inferences can be drawn against him. At the best, the refusal would come handy as a circumstantial evidence against the accused but that cannot be enough to prove his guilt.
A look at civil laws would also connote that estimation of mental fitness of a person is usually ordered by a civil court to protect his rights, especially when there are apprehensions with regard to usurpation of his properties by others taking advantage of his lack of cognition.
In 2011, the Delhi High Court had ordered veteran Congress leader N D Tiwari to undergo a DNA test but the principle laid down in the judgment was unequivocal – it asserted another man’s right to ascertain his parenthood as a part of his fundamental right to live with dignity. It had snubbed Tiwari’s arguments regarding “invasion of his right to privacy’ after pointing out when there are two fundamental rights competing with each other, precedence has to be given to the right to life and live with dignity.
The other class of cases where issues of blood tests and DNA samples frequently arise pertain to matrimonial disputes. In a series of judgments, the Supreme Court has ruled that these tests cannot be ordered as a matter of routine.
In Goutam Kundu Vs State of West Bengal, 1993, and Sharda Vs Dharmpal, 2003, the apex court laid down that courts in India cannot order blood test as a matter of course or to have a roving inquiry. The judgments maintained that such tests can be ordered only after examining the consequences of such tests (including it may not have the effect of bastardising a child), and when there is a strong facie case in favour of the plea.
The recently enacted Mental Healthcare Act, 2017 deals comprehensively with subjects of mental illness, medical care, admissions to recognized institutions as well as rights of persons with mental illness. The provisions in the Act elucidate that treatment cannot be given without “informed consent” of the patient with the support of his nominated representative. This law says that a test can be conducted without a patient’s consent when he is hurting himself. The Act further states that a person with mental illness shall have the right to confidentiality in respect of his mental health, mental healthcare, treatment and physical healthcare.
It, therefore, raises serious questions as to whether Justice Karnan can be forced to undergo the psychological examinations, especially when he has been a judge himself, dealing with cases and laws day in and day out.
The Supreme Court order on Monday said that the tests will be done to examine whether he is in a position to defend himself in these (contempt of court) proceedings or not. The court took into account suo motu orders written by Justice Karnan whereby he sought to impose travel ban on the Supreme Court judges who are hearing his contempt case and also sought the judges’ presence before him.
The apex court, therefore, asked the DGP to ensure compliance with its direction on the medical tests but can Justice Karnan be divested of his basic rights as a person and also as a judge of a constitutional court in being forced to go through the medical tests.
Notably, on the last date of the hearing in March, the bench had specifically asked Justice Karnan whether he wanted to get his medical tests done under the supervision of the court but he had vehemently shot down the suggestion. He had narrated how he had been a judge for last nine years, handling variety of cases and that he would know the best about soundness of his mind.
Article 142, which empowers the Supreme Court to issue any directives “for doing complete justice in any cause or matter pending before it”, seems to be the only plausible explanation for the direction issued by the seven senior-most judges of the top court. But it cannot be lost sight of that the person in question occupies a constitutional post and it is only through a procedure prescribed in the Constitution that he can be removed.
Not to forget, it is the Parliament and its members who have to initiate the proposal for removal of a judge of a high court and the Supreme Court. Hence, the direction of medical tests of Justice Karnan becomes suspect on many grounds, most importantly when the order is directly affecting his basic human rights and also his rights as a person sitting on a constitutional post.