Speaking at a public event at New Delhi on December 7 organised by The LeafLet , former Supreme Court judge Justice Kurian Joseph said that improved dialogue between the Chief Justice of India and Centre could have fast tracked judicial appointments.
On asked why certain recent recommendations of the Supreme Court collegium (of which Justice Joseph is a member) have been cleared by the Centre with “undue hurry”, Justice Joseph replied :
“As a system, and it is not a perfect system, when a name is recommended, the decision is taken with the help of available inputs, and the government has only two options- if they have any adverse inputs against a candidate, they have to send it back, or they have to clear the name. They can’t sit on it. In fact, I had written a letter to the CJI that he should take appropriate action (in the face of the government acting on the recommendations belatedly and holding up appointments, most conspicuously in Justice K. M. Joseph’s instance). May be on account of the improved dialogue between the head of the executive and the head of the judiciary, things have been fast tracked. Even in the High Courts, appointments have been fast tracked. This maybe because now there is no communication gap”, the former judge explained.
He advanced that he does not think that these names are more amenable to the government- “the recommendation of the Collegium is not based on acceptability to the government but on the independent assessment of the requirement by the Collegium. Three out of the four names recently recommended are from the major High Courts of the country which are not represented in the Supreme Court at all...”
When quizzed about why one of the judges recently sworn in, who hails from the Patna High Court, called the PM a “hero” and a “great man”, Justice Joseph replied that that was the judge’s personal perception.
Justice Joseph was also in favour of “regular dialogue” with the Executive on matters of infrastructure and delays in appointments, which continue to be in the hands of the government. “As the Chief Justice of a High Court, I have done this”, he added.
On the press conference of January 12, Justice Joseph was of the view that the “chapter should now be closed” instead of being “resurrected”, making way for the “more burning issues”- “Much has been debated and discussed. I don’t think the Indian polity has not understood why we had come out. I had made a promise that upon my retirement, I shall explain in public why I went, and I kept my promise. Why speak of these issues which have been masticated to the maximum extent?”
“I went out on my conviction. There was a perception that the judiciary, and not particularly the Supreme Court and not particularly the captain, was not functioning independently. And this perception was not just our own but also of some other judges. A similar view was expressed by the media too.We went and told the Chief Justice that it should change. Since there were no signs of change, we put it in writing. Driven against wall, seeing no result, we thought of telling the nation and discharge our debt to the nation...the history must not accuse us of not telling the civil society...like when Thomas (Justice Joseph's grandson) becomes an adult, he should not ask me what I did (to remedy the situation).
As to why no further action was taken in this behalf, the judge replied, “you should discern that there is nothing more left to do. In court, when we say that the board is discharged, the Lawyers go home. We discharged our debt to the nation, It is now for the nation to take it forward...”
On Finance Minister Arun Jaitley’s statement that if a retired Supreme Court judge attaches a motive to a former CJI’s actions, he must place the evidentiary material in public domain, and if the needful is not done, it would be deemed that no material exists.
Stating that he has not seen the statement, Justice Joseph asserted, "All perceptions do not need to be based on some material". Further, “the material is not an anecdote. One such instance which was seen and discussed in public was the selective allocation of cases among benches...those who have the material should present it before the public”.
On whether a different composition of the five-judge benches that, over the past year, heard several matters of substantial constitutional, political and public importance would have secured different outcomes
“That is a hypothetical question...It all depends on what decision a judge would have taken based on the arguments addressed before him and after considering the constitutional position of the issue...That would all depend on what call the judge would have taken based on the evidence and the materials and the arguments. Unless the judge sees it, I can’t say”, replied the former judge.
On Chief Justice Ranjan Gogoi’s recent dinner with Prime Minister Narendra Modi, he said :
“Whenever a new Chief Justice comes, it is the convention that the President and the Prime Minister throw a dinner at the Rashtrapati Bhawan and the PM house respectively. It is not just for the CJ, but all of us participate...For the Constitutional Day celebrations, it was the suggestion of the CJI that we have a common celebration, instead of separate ones by the government and the apex court. So, accordingly, there was one at the Vigyan Bhawan during the day and then in the evening at the Supreme Court premises (by the SCBA). After the evening celebration, the PM was invited for dinner as he was not available the next day. He interacted with all of us. He was invited by the CJ along with the dignitaries of the courts of the neighbouring countries...We all went to Court 1 together, we were together all the time...It is not like the CJ and the PM retired to the chambers privately and were discussing something secretly. The other dignitaries have not seen our Supreme Court and they wanted to see it. There is no point in only inviting them and not asking the PM. We were all sitting together on one table and all of us were invited; it was Not an invitation personally to the PM. The Vice-President had left early so he could not be there, but All of us senior judges were”, narrated Justice Joseph.
When asked if it was unusual for the PM to visit Court 1 of the Supreme Court of India, he reflected, “I don’t see anything wrong with it so long as it happens on a formal occasion along with the other dignitaries. If I was invited to see the Rashtrapati Bhawan, I would have liked it...please don’t make a Mountain out of a molehill. Don’t read too much into these things...these Small, silly things...There are other important issues that need attention...”
Shortcomings in the Collegium System
Justice Joseph pointed out that the MoP needs to finalised and hoped that the improved dialogue between the apex court and the government would help in the same. Also, he noted there continues to be No secretariat in the Supreme Court or the High Courts on the Matters of selection and recommendation for appointment of judges. He was of the opinion that it would aid the Collegium to be in a better position to assess the need and verify the credentials of the candidates.
On publication by the Collegium of the reasons for rejecting a candidate, towards greater transparency, he commented:
“Can we publish the reason for not selecting a candidate? Would it not affect his rights, his dignity, his moral integrity, his financial integrity, his credibility? Would you engage him after that? A person who has not been selected has to come back in the profession. We cannot not select him and kill his profession! We are following a process of interacting with the candidate concerned, putting to him the adverse material against him and why we cannot consider his name...”
However, he assured that all names considered, whether recommended or deferred or put for further deliberation or sent back to the High Courts, are published- “Because there is an agenda to these meetings and all that is transacted in pursuance to this agenda is reflected in the decision which is published on the (official website of the Supreme Court)”
He credited former Chief Justice Dipak Misra for having brought about this improvement in publishing the Collegium resolutions, despite there having been no specific demand for it by the other judges in their letters to him.
On encouraging an environment where judges are not inclined towards post-retirement jobs with the government, he commented :
“You want the retired judges to man certain positions. So why not increase age of retirement for all judges, from the Civil Judge, Junior Division to the Supreme Court? Raise it to 70 or 75. If they can man the Human Rights Commission, why can they not continue as a judge? I think they would have had even more experience and exposure with time...And make this post interchangeable where you can place even a sitting judge as the Lokpal or the NHRC Chairman”, weighed in Justice Joseph.
On benches deciding on religious questions, such as the constitutionality of the practice of Triple Talaq, being so constituted as to comprise judges of varied faiths, he said :
“In the triple talaq case, there was no conscious selection of judges to represent a diversity of faiths. It was a very sensitive issue for a particular religion, so the views of other faiths would have aided the court in finding a better approach to deal with it. Left to me, I would say it was done properly...The diversity of the country should be reflected in constituting benches, I said so at my retirement function also. There should someone to tell the CJ to have diversity on the benches, not necessarily of religion, but of language, region or even ethnicity. It is not mandatory, but if people are available, then it would be better to constitute such benches. It would then be seen by people in the right perspective...Where the constitution benches of the same composition were hearing matters, we, and even the members of those benches, had asked the Chief Justice to form a different bench...”
On the application of Constitutional morality in religious matters, in context of the Triple Talaq judgment :
“I do not say in my triple talaq judgment that what is not permissible in theology cannot be accepted in law. That would be dangerous. I did say that what is not permitted in the Quran cannot be allowed because the Quran is a part of the Shariat and the Shariat is regarded as the personal law. So the practice of the Quran is the practice of the Shariat law”, he clarified.
On Capital punishment :
“The Bachan Singh verdict, rendered in 1980, was a beautiful piece, where, in upholding the death penalty, the constitution bench also left only a narrow window for awarding it. That window requires the capital punishment to be resorted to only when all other options are unquestionably foreclosed. It envisaged the principle of ‘rarest of the rare’, a consideration of the crime as well as the criminal, and whether the accused cannot at all be reformed. I took it forward to ask how does one reach a conclusion that a person cannot be reformed. Look at all the cases the Supreme Court is considering now- they have been in jail for at least a decade- has any psychiatric or other appropriate assessment or evaluation been undertaken to ascertain whether they are capable of reformation? I have just added one more value. My personal philosophy is different and I have taken the oath to uphold the constitutional values and not my personal philosophy. The progress from Bachan Singh to the latest cases, the Supreme Court asking the Law Commission to recommend whether the death penalty should be retained, the Commission, in 2015, saying that it is is high time we did away with it...my conclusion was based on this...”
On his views on the recently delivered judgments on adultery and homosexuality regarded as being against progressive thought :
“I was asked for my personal view. There was no question of my view as a judge or how I read the decisions. If I was asked that, I would say that The constitutional guarantees of dignity, liberty and equality have to be protected”, remarked the judge.
On Apex Court acting like a trial court :
Justice Joseph clarified that his observation that the Supreme Court must not act as the trial court was not in context of the controversial Loya case. He elaborated that the Supreme Court is meant to exercise original and appellate jurisdictions, and should not act as trial court barring the situations of interstate water dispute etc as contemplated in the Constitution.
On sealed covers :
“It will differ from case to case. ‘How uncomfortable will it be otherwise’- That is how a judge looks at it. I have also asked for documents to be furnished in a sealed cover. It is not always connected with the sensitivity of the information but that divulging the information at that stage will do more harm to the public”
On judgments being reserved for long duration :
“It is Not a healthy practice to deliver judgments late. Even the Supreme Court on the judicial side has laid down the maximum period for pronouncing the decision and if it is rendered any later, the client is entitled to claim a re-hearing. A Timeline has been set. It is Not even correct to keep the judgment reserved for long periods in view of the Supreme Court judgment”
The conversation was concluded on a humorous note with Justice Joseph being asked if he possesses an Aadhaar card and if it linked with the various services, including mobile number and bank accounts. “I have an Aadhaar card, but I must confess that for the past 18 years I have been heavily dependent on my private secretary, so I cannot say as to what extent it has been linked. Maybe next month, I will be in a position to answer that question”, he quipped.