Judges are appointed to uphold the Constitution not their faith: Justice Kurian Joseph

Once a judgment is pronounced, it is the duty of the Executive to implement the decision, says Justice Joseph

Justice Kurian Joseph. File

Justice Kurian Joseph, who retired as the third senior-most judge of the Supreme Court, revealed to The Hindu on December 5 that there is better communication now between the highest judiciary and the executive and this shows in the quick filling of judicial vacancies.

You are known as a humane and compassionate judge. What has driven your compassion, especially in family dispute cases, where it is not just about the cold letter of the law but relates also to matters of the heart?

All through these years, my quest has been to see justice tempered with mercy. That is the constitutional concept. The theme of compassion flows through the text of the Constitution in favour of those who deserve it, be it women, children, the illiterate, the poor, the old, SC/ST communities.

In family disputes cases there is no point in laying down a law. It is a sheer question of human relations. The attempt should be to settle the disputes for the sake of the parties and welfare of the children.

Lynchings, honour killings, violence over religion continue despite Supreme Court judgments barring them. How relevant is the Supreme Court when its decisions are openly flouted on the ground?

Let us disassociate with the issues you asked about. Those are all political issues. So long as the Constitution exists, the Supreme Court is relevant and the Supreme Court will see that the Constitution exists. It is both ways.

The judgment of the Supreme Court is binding on all. It has a finality. Once a judgment is pronounced, it is the duty of the Executive to implement the decision. In case they find the Supreme Court decision needs a clarification, a review, it is open for them to approach the court. The curative also provides that the cause of justice shall not suffer on account of any procedure. If the Executive still finds that it is in larger public interest not to implement the decision, they can take away the substratum of the decision by an appropriate legislation in the parliament or the State legislature. These are the only two options available.

Do you think judges should bring in their own morality or logic in matters of faith, however illogical?

They should not. Judges are appointed not to uphold their faith. Their oath is to uphold the Constitution and the laws without fear or favour, affection or ill will. They should uphold the Constitution and not their concepts, ideology or philosophy on any issue, be it morality.

Should Supreme Court entertain PILs filed by third parties questioning religious customs or beliefs?

Again, please disassociate yourself with the pending issues. I will not comment on pending issues. But on principle, my firm and personal view is that Supreme Court should not be spending time on non-issues. There is a lot of difference between public interest and what the public is interested in. The Supreme Court should be interested only in matters of larger public interest in which there are no legislative or executive norms in place. What the public is interested in is the concern of the elected representatives of the parliament or State legislatures. If the public feels that something is to be prevented, it has to be through an appropriate legislation.

History shows the Supreme Court is mindful of who is in power in the government. During the Emergency when a majority government was in power, the Supreme Court upheld the suspension of personal liberty. Now, the court again has a series of politically sensitive cases with it. All eyes are on the court. Will the court be mindful of political repercussions?

I do refuse to believe that. The Supreme Court is not politically sensitive, it is only constitutionally sensitive. Issues may be political, but the court only considers whether these issues are constitutional or legally valid. Political sensitivity or sensationalism is not the court’s province.

You have said that the January 12, 2018 press conference was triggered by a feeling that the then CJI was controlled from outside. Was this a perception or is this based on some concrete material evidence or proof that you had received at the time?

It was a perception. There was a perception in the minds of not only the four of us but among several of the judges, and you the media also. The media has been also telling of such perceptions. So when such perceptions came to our notice, we met the CJI. We told him that he should take positive steps to change the perceptions, and thereafter, we wrote to him. With all that, there was no positive change in the perception. It was at that instance, we went to the media, asking them also as watchdog to do their duty and also discharging a duty to the nation so that we will not be accused of not discharging our duty later. This is what pressed us. Let us not resurrect these issues now. There is no point. I told the people then that I will tell why I went to the press after my retirement. As a sitting judge it was not proper for me to explain. So immediately after my retirement I told the people that I went to the Press under this background. It is not an issue now. That issue need not be a matter of public debate now. These are buried issues. I only owed a duty to explain my stand as to why I went. It was a promise I made, so I divulged it. Let’s close the chapter. There are far more burning issues in the country.

 

You have said the perception was that the CJI was selectively allocating cases to some judges with political inclination. Did you confront these judges with your doubts?

It was not for us to confront the judges. We had only brought it to the notice of the CJI that there is such a perception is not in the interest of the institution and it would affect the independence of the judiciary.

Some of the judges had a feeling that they were not taken into confidence before going to the Press and some of them said had we shared it with them, they would have also joined. That also was there. It would have been more appropriate that we should have shared this with them. Unfortunately, they also did not know the steps we had already taken prior to such a drastic step. It was the case of the biting of a barking dog.

Did you feel a sense of unease among the judges of the Supreme Court during the time after the January 12 presser?

Initially there was a bit of unease. But slowly when they understood our position, everything came to normalcy.

Did the CJI approach you or ask you why you went to the presser?

There was no such question put to us as to why we went. But the CJI also understood or realised that certain steps had to be taken for improving the system of functioning of the Supreme Court so as to protect its majesty as an independent institution. And he had taken quite a few steps. Those impact had a great impact also.

So, he realised it only after you went to the press conference...

Probably yes. Process of improvement of the system is still continuing. The present CJI has taken several steps in that regard. It should continue because it is not a change you can bring about in a day or two. Systems and practices should be in place rather than an individual taking decisions.

After the press conference, did you perceive whether the external influence lessened?

I did not say an ‘influence’ by a political party or a political source. I only said there was a perception that he was not functioning independently. I never said it was a political authority or a political party or a political source.

 

Was he functioning independently after the press conference?

Yes, the perception certainly changed.

Do you agree with the term ‘rebel’ judges describing the four of you?

We were not part of a rebellion. We were not ‘rebel’ judges. Of course we took an extraordinary step but that was not a rebellion in the institution. We only did our duty according to our conscience.

In the first time in history, a motion was made to impeach a sitting CJI for abuse of authority. Yet he did not withdraw from work. Do you think he should have?

I did not think he should withdraw from work. That was not the stage a CJI should take a decision that he should withdraw from work. If that be so, it would be very easy to get the signature of the required number of people and move a motion that they successfully prevent a constitutional authority from functioning. He did the right thing by not recusing.

And if the impeachment motion had been accepted?

Probably that would be an appropriate stage for a judge concerned to withdraw from work. As that means there is a prima facie view has been taken and process has been taken to the next serious stage.

What was the atmosphere within the Supreme Court when the CJI was facing impeachment motion? Was the court worried about its public image?

There was no such problem. Probably the CJI knew that there is no basis for such a motion. He maintained equanimity and the Supreme Court functioned well.

In the master of roster, there was a perception that the CJI was acting as his own judge. He was allocating Benches hearing the cases?

I have a strong personal view on the master of roster issue. It is not an individual’s decision. This must be an institutional decision. If it is an institutional decision, it should be based on certain conventions and practices, etc. In the matter of the conduct of the Supreme Court by the CJI, he should be guided and aided by his sister and brother judges.

 

There was a suggestion to have a committee of judges, possibly of the incoming chief justices, who could look into issues pertaining to roster, administration of the court, etc, to ensure continuity. Now everything changes from CJI to CJI. That is not healthy. A constitutional institution should not depend on an individual but on healthy practices.

Do you think that government sitting on Collegium recommendations in judicial appointments amounts to interference, like trying to say ‘you give me favourable decisions and I give you the judges you want’?

A judge is likely to become the Chief Justice of a High Court in the normal course. Thereafter, he is also likely to land up in the Supreme Court. Suppose that name is segregated and others are cleared. His chance is completely marred. Amounts to direct interference in the independence of the judiciary.

It is for the collegium to recommend names on the basis of the inputs provided by the government. If they have any fresh input on the candidate, it is for them to bring it to the notice of the collegium. Once Collegium takes a decision, it is not for the govt to either sit over it, delay it or segregate it. They cannot take on the mantle of a reviewing or appellate authority over the collegium.

Now, after the present CJI has taken over, four new judges have been appointed within hours of their recommendation by the collegium. High court vacancies are being filled up in record time. What has caused the change after CJI Gogoi has taken over? The government seems to be on a hyper drive...

There is better clarity. I understand that views have been exchanged and the CJI and the PM would have had discussions on these issues. Certainly they had discussions on the issues. Both the heads would have taken appropriate decision to expedite the process and not to delay it. So the delays in between have been sorted out.

Does this mean that there was some miscommunication or some gap in communication earlier?

I think so. There was lack of proper communication between the two heads stood in the way.

Because if there is any problem, both of them should sit together and work it out.

Did they sit together?

They sit together. They have been asking the CJI to have regular meetings like that so that all these delays can be sorted out.

Was it because of this miscommunication that there were delays in filling up vacancies?

This is only one factor. There were several other reasons. Delay on the part of the high courts recommending names, processing it, inputs, their verification. But once collegium takes a decision, process of appointment must not be delayed.

 

So this CJI has been very effective in having a dialogue with the Executive, trying to resolve the issues. They met mid-way?

Yes. There is no delay now. They have sorted out the gaps. The possible reasons for the delay.

Is such a dialogue healthy? Especially when the government is the largest litigant? Should there not be some distance maintained?

Dialogue is not about any of the litigation. And the dialogue is not closed-door. But an open dialogue on issues relating to judicial appointments. There is no independent controller of the courts. The Supreme Court only takes the decision, thereafter the process of appointment is by the government. Therefore unless there is some sort of dialogue on several issues concerning the administration of justice, there is likelihood of delay or likelihood of system suffering on account of lack of dialogue, suffering in infrastructure issues. There is no problem. Look at the persons, one is the PM of India and the other is the CJI. One is heading the nation. The other is heading the Supreme Court, rather the Karta of the judiciary in India. They know the limits within which they should talk and also know the limits they should not cross in their dialogue. They are mature people. It (the dialogue) is both formal and personal in respect of issues. There is no room for personal matters to come in.

Recently, the Prime Minister visited the Supreme Court. What happened?

All of us, the CJI, I and judges were there when the PM visited the Supreme Court. He participated in the dinner with us. He went around… in fact, he was invited by the CJI to see the institution. It is a matter of courtesy. A simple routine process. He saw the Supreme Court, saw the court, the lounges. In fact, we go to the PM’s house in these sort of ceremonial occasions. This time the initial functions were in Vigyan Bhawan and the final one in the Supreme Court, that is why the PM agreed to come to the Supreme Court.

Can you shed some light on the status of the Memorandum of Procedure?

That is very unfortunate. The government keeps on saying on the floor of the parliament that the MoP is final and the Supreme Court says it is final on their part. This is also I think the PM and the CJI should sit together and work it out. I have been asking successive chief justices, let the nation get an impression of what the problem is. Sure the present CJI will take up this issue with the PM and get finality.

Is this country ready to let go of the death penalty?

The rarest of rare principle has to be applied both in terms of the crime and the criminal. Whether a person can be reformed or not, there is no assessment. That is why we suggested an appropriate psychiatric evaluation. One may not know the circumstances in which he became a criminal, the crime was committed. Several aspects need to considered before coming to the decision that there is no scope for reformation.

 

Should judges’ retirement age be increased?

The chairpersons of the National Human Rights Commission and some tribunals continue in office till the age of 70. If they can man such important positions, why cannot judges continue in the Supreme Court and high courts. A judge gains a vast experience by the age of 60 or 65.

What next?

I do not propose to take up government assignments . These are sometimes given as a charity from the government. Instead of retired people running after the government, government should go after them to accept the position. I intend to do independent service. I can do better service in the field of law and prefer to remain in Delhi and engage in arbitration and mediation. Intend to experiment in mediated arbitration and mediated conciliation to ensure that awards or settlements are not subjected to further litigation.