Constitutional institution should not run on individual's perceptions: Justice Kurian Joseph

Justice Kurian Joseph, who retired on November 29 as a judge of the Supreme Court, does not regret his being part of the unprecedented judges press conference on January 12. In an interview with THE WEEK, Joseph explains why he and his three brother judges went public with their grievances. He says judiciary's independence was in peril, and that of the then chief justice of India Dipak Misra was shaky. There was a perception, he says, that Misra was not taking decisions independently.

While refusing to comment on the Sabarimala verdict as the matter is sub judice, Joseph said that the Lakshman rekha for religions is to not violate public order, health, morality or fundamental rights. The moment it is violated, room for a legal challenge opens up, he said, adding that the court should concede that it is not the sole custodian of constitutional morality.

Joseph has strong views about public interest litigations. He said that the court ought to be more discerning in what issues to admit, since there are over 60,000 cases pending before it. The court should not spend time on non-issues, he said. Edited excerpts from the interview:

Do you end your innings as a judge with satisfaction or are there any regrets?

Absolutely no regrets. I vividly remember the day I took oath as a judge of the High Court on July 12, 2000. My wife was against my going to the bench. She told me it was a crown of thorns. But I promised her that I would make it a crown of roses. And when I spoke in the Supreme Court on November 29, 2018, in her presence, I told her that I am quite confident that I have fulfilled that promise.

I disposed of 66,000 cases in the Kerala High Court, over 15,000 in the Himachal Pradesh High Court and over 8,700 cases in the Supreme Court, of which over a thousand are detailed judgments. I am also very happy that I was part of a few Constitution Bench judgments.

I had the great satisfaction of listening to all eminent lawyers of this period. There is Ram Jethmalani, Mohan Parasaran, Soli Sorabjee, T.R. Andhyarujina, Goolam Vahanvati, the present Attorney General K.K. Venugopal, Fali Nariman, P.P. Rao and Rajeev Dhavan, to mention a few.

My pursuit has always been to see justice beyond the law, to do complete justice. I had special joy when I saw tears of joy falling in the court, when children got their parents back; when warring couples left the court hand-in-hand; when couples parted, but as friends; when three generations-long family disputes were settled and commercial litigations pending for decades were resolved.

In recent times, the court has been criticised for indulging in judicial overreach.

The media's attention is on sensational cases. And majority of the cases are in public interest. I have an observation on public interest litigations (PILs). I said in my farewell speech also that the Supreme Court should not spend time on non-issues. There are over 60,000 cases pending in the court.

So should the court be more discerning in admitting PILs?

It should. Why does a PIL reach the court? One, because there is no proper legislation in place in respect of the issue. Two, there is no proper governance in terms of the legislation available. When there is a passive legislature, there is an active court. And that applies equally to governance.

The court should discern between what is public interest and what the public is interested in. The court's duty is only to see the public interest in terms of its constitutional vision and obligation. What the public is interested in is for elected people to consider.

In this context, there is huge outrage over the Sabarimala verdict.

Since the Sabarimala issue is pending in the Supreme Court, it will not be proper for me to answer that question. But on a question of principle whether it is proper for the court to get into matters of religion, well, look at the Constitution. All the good principles of religion such as equality, liberty, fraternity and justice are there. The second aspect is Indian secularism, which is not against religion. It is a fundamental right under the Constitution for any citizen to profess, practise and propagate religion. But there are a few restrictions. The Lakshman rekha for religions is to not violate public order, health, morality or fundamental rights. The moment it is violated, there is room for appropriate challenge.

Can constitutional morality be applied to religion?

The court should concede that it is not the only custodian of constitutional morality. Lawmakers are also aware of constitutional morality. They do not sacrifice the dignity or constitutional rights of a person while making a law. 

In January, you and three of your Supreme Court colleagues held an unprecedented press conference. In hindsight, was it the right thing to do?

A lot has been said about the press conference. I do not want this to be an area for another public discussion. But I had promised as a sitting judge that after my retirement I will tell you as to why I went to the press. So I am speaking about it.

We found that things were not in order. The independence of the institution was in peril. There was a perception like that. We brought this to the notice of the chief justice of India. We wrote to him, and we met him. But since we found that no effective steps were taken to change that perception, we finally thought that we will go to the nation and we did that.

After the press conference, we had several discussions with the chief justice. He took several steps, things have improved, and the present chief justice has also taken certain steps.

When you raised the issue of selective allocation of cases in the Supreme Court, did you mean interference in the functioning of the judiciary by the government?

It is not a question of the government's interference or the political executive's interference or a political party's interference. There was a perception that the independence of the judiciary and the independence of the chief justice of India was at stake. The independence of the chief justice of India was shaky.

Was the CJI under pressure from the present regime?

We do not know. But there was a perception that he was not taking decisions independently. We brought it to his notice, that this perception should change for the dignity and majesty of the court.

How did the other judges respond to the press conference?

They had a bit of an uneasiness initially. But then they realised the urgency.

Critics said the press conference left the judiciary in a vulnerable situation.

They are entitled to have their own perception. I am of the view that they were not in the know of the complete background under which we took such a drastic step. That was one reason for the uneasiness among the brother judges, that we did not share these developments with them.

How do you look at the move that was made for impeachment of the CJI?

That was a political decision. I do not want to comment on that. But I do not think that the press conference had anything to do with it.

The Congress says there should be an inquiry with regard to your statement that the then CJI's independence was at stake.

My statements shall not be a basis for any such political move, because there were several political discussions on those issues. There is nothing new about it.

What is the present status of the new Memorandum of Procedure?

It is very unfortunate. The government says on the floor of the Parliament that it is not final. The Supreme Court has taken a stand that it is final. But the stand of the present chief justice is to have a better dialogue on such issues. It is not final as of now, because it has not been signed, though the Supreme Court has taken a stand that it is final.

The impasse should be resolved soon because the institution cannot continue to function on the basis of a draft MoP in the matter of selection and appointment [of judges].

The collegium system has been under attack for lack of transparency.

In the separate judgment which I wrote while on the Constitution Bench, on the validity of the National Judicial Appointments Commission, I discussed the inadequacies of the collegium system. I used the expressions 'glasnost' and 'perestroika'. There should be an open approach and a corrective approach for removing the perception of lack of transparency.

One major step to be taken is setting up of a secretariat in the Supreme Court and in the respective high courts because we do not have any mechanism for verification of the credentials of a judge.

How have things changed since Justice Ranjan Gogoi took over as CJI?

Certain changes were introduced by Justice Misra. That process of change is continuing. My personal view is that a constitutional institution should not run on an individual's perceptions. The chief justice of India as the chief justice of the Supreme Court is the master of the roster. That does not mean that it is an individual's personal decision. It should be an institutional decision, properly assisted and guided by appropriate mechanisms.

What are your plans after retirement?

I have decided not to take up any government assignment. I will render my service in the field of law itself. I will stay back in Delhi, do arbitration, mediation, mediated arbitration and mediated conciliation.