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The Agni Pareeksha, 2018 Redux: The Trial Of Justice K.M. Joseph

“[There is] no other method of making the adjustment necessary to a society like ours for maintaining the equilibrium between the state and the federal power, for settling the eternal conflicts between liberty and authority – than through a court of great traditions free from the tensions and temptations of party strife, detached from the fleeting interests of the movement.”

Felix Frankfurter (cited by Justice K.K.Mathew in the First Sir TejBahdurSapru lecture titled ‘Democracy, Equality and Freedom’.)

What are the qualities that make a judge endearing during his lifetime and his reputation enduring in the ages to come?  Is it brilliant intellectualism? An encyclopedic knowledge of the law? The intricate laying down of the law or the craftsmanship of law and language? Fierce Independence? A sense of poetic justice? In a sense, all these qualities do maketh a judge.

When judges write judgments they address multiple constituencies. They unwittingly converse with several segments of society. The society, in turn, judges them. Consciously and unconsciously, it grades them and places them on a hierarchical pedestal. In many ways, we judge judges just like we judge authors and litterateurs. George Orwell and Charles Dickens are still relevant because they transcended. They used their skill of the language not for its own sake, but used it for the betterment of humanity and to create a more fair and just world.

The society has its own tests. They look at how judges treat women, children, the economically weak and the powerless and judge them through the prism of “apolitical humanity”. They search for compassion and benevolence in the cold texts of judicial reasoning. It is a relentless and unconscious booting and rebooting, case by case. Earl Warren, William O Douglas, Denning and Krishna Iyer cut through the steel shackles of what we call ‘the law’ and brought justice to humanity. What they wrote did not confine itself in the law reports, they sprang into popular folklore and still rings through the many languages of humankind.

Many brilliant judicial minds are nowhere in the public consciousness. They are recognizable but unmoving names in the supreme court reports. We have all but forgotten Subba Rao,J. and still sing paeans to a judge who was Kerala’s Home Minister in the first elected communist government. A brilliant Justice Bhagwati, a pioneer of the jurisprudence of radical humanism,is not on the top of the vertical pedestal. Is it because of the public perception that he compromised on judicial independence and personal liberty?

How is it that Justice K.K.Mathew seeped into our consciousness and transcended the many boundaries of caste, religion, language and politics? How is it that the nation engaged in his cause, when so little is known about him? The verdict in Uttarakhand President’s Rule case is what strikingly comes to mind. Here, he followed fearlessly the constitutional dharma laid down by the Supreme Court in S.R.Bommai’s case. The judgment brought to an end,the travesty of trampling upon a democratic verdict by the sheer force and velocity of political power. The judgment was founded on law and grounded in justice. He followed  Frankfurter’s dictum, in the tradition he was schooled in, in the house of  Justice K.K.Mathew.

There have been a deluge of editorials, diatribes, lead articles, angry protestations and calls for general body meetings of Bar Associations to condemn the action of denying Justice Joseph his rightful place as a deserving and an independent candidate. The government, as governments always do, does not care for merit but longs for loyalty. Just like governments appoint its officers, where loyalty is the key test, they would rather follow the same principles in appointing judges. But then the Collegium is a major hinderance. The Collegium has the backing of three judgments. The Collegium came into the constitutional consciousness of India to preserve and protect merit and Independence.

The government has tools at its disposal which uncannily can be made to work within the framework of our constitution. They shot down a most deserving candidate – Gopal Subramanium. Now it will do everything in its power in this case as well. They have exercised an option in their power, which is lucidly recited in the second and third Judge’s cases and endorsed in the  NJAC verdict. This they did legitimately,though not convincingly. The government is doing much more than just shooting objections to Justice Joseph’s appointment. They are also sending coded signals to be read by the constituencies they are addressing. But this is how politics will always work. The sooner we understand it the better.

The great epic Ramayana recites the trial of Sita with poignancy and sensitivity unparalleled in literature. Rama suspects her chastity, on a mere casual banter amongst his subject populace. The accusation was unjustified, untrue and the trauma unbearable. It questioned Sita’s womanhood and all that she stood for. But the predicament is, Sita cannot answer the charge despite the truth being on her side. Sita needs an external entity to prove her case. She demands Lakshman to set a pyre. She walks into its fiery flames to come out unscathed. It was not the trial of Sita alone. It was the trial of all womankind in an outrageously male-dominated power structure.

Justice Joseph is now in the very same tight corner. His candidature has been unjustifiably questioned. The tests imposed by a political establishment are untenable. The reasons for his exclusion are spurious. But he cannot answer the charge. This epic constitutional drama in our 71st year of independence had to be played out. The stage was set for the entry of the main dramatis personae, the Collegium, to play its part. The Collegium has risen most admirably to the occasion. The history and the people are on its side. History will judge the collegium’s verdict more than kindly for having set the compass straight. As for Justice K.M.Joseph, he will have to go through the very end of this agnipareeksha. But this agnipareeksha is not for Justice Joseph alone, but for the independence of judiciary itself.

Santosh Paul is an advocate at Supreme Court of India.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]

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