Idea exchange: The present CJI has told us that he is going to have regular dialogue with the head of nation, says Kurian Joseph, former Judge, Supreme Court

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New Delhi | December 09, 2018 4:52 AM

Former SC judge Kurian Joseph talks about his remark that ex-CJI Misra was working under some external influence, blames lack of communication for delay in appointments earlier, reflects on constitutional morality in faith-linked cases, pitches for a Secretariat, and calls for alternative methods to litigation

Justice (retd) Kurian Joseph with Liz Mathew of The Indian Express Renuka Puri

LIZ MATHEW: What made you join the three other sitting Supreme Court judges on January 12 and hold a press conference against the then Chief Justice of India?
About what happened in the Supreme Court… The perception was that things are not going in the right direction. In fact, we met him (former CJI Dipak Misra) casually and told him that this is the perception in the minds of the other judges, public and, in the media, and so you should take corrective steps. It is not that we did not try (to speak to the former CJI). We tried all methods — telling him casually, bringing it to his notice and then formally meeting him. Finally, we also gave it in writing. When all these attempts failed, when we were pushed to the wall, we went out and, as one of us said at the time, we discharged our duty to the nation.

LIZ MATHEW: Have things changed since then at the Supreme Court?
Yes. After that episode, several corrective steps were taken by the then CJI. He was open to it. That was something very positive. However, one of the steps that we suggested was not implemented; it is very sad. I feel being a great institution, institutional practices should be in place (at the SC), rather than individual CJIs coming and going, and taking their own decisions. In the Supreme Court, the whole thing depends on the CJI concerned. So one CJI will adopt a policy and then it need not be followed by the succeeding one. It was in this context that we made a suggestion that let there be a committee of judges, preferably with some incoming CJIs as members, so that there is no disruption and debate later… and there will be a continuity of practices. Unfortunately, that was not accepted. But yes, several steps were taken and things have changed quite a lot. The process of improvement is still on.

LIZ MATHEW: You recently said former CJI Dipak Misra was working ‘under some influence of some external source’. It’s a very serious charge. What made you say that?
What I said was that there is a perception that there is an influence. We could perceive that he was not taking independent decisions. If the CJI does not take independent decisions, then the independence of the judiciary is at stake. That is what I said. If he is not taking decisions independently, then the perception is that somebody else is influencing him. Who that ‘somebody’ is, I am not in a position to say. The only thing I could perceive is that he was not taking decisions independently.

RAVISH TIWARI: You have worked with CJI Ranjan Gogoi for two months. Has he put the necessary mechanisms in place?
I am not quite sure because I didn’t have an occasion to discuss the matter with him. But I understand that he has taken some steps, there have been consultations… A better interactive process has been initiated. But whether a formal committee has been formed, I am not in a position to say.

RAVISH TIWARI: Was the Opposition justified in moving an impeachment motion against the former CJI? And, was the Chairman of the Rajya Sabha justified in rejecting the petition without sending it to a committee to look at the merits of the case?
Let’s not mix this with the press conference by the judges. Impeachment motion required a different approach altogether. They (Opposition parties) needed to have material on the basis of which they should have taken the decision (to move motion of impeachment). The press conference by the judges cannot be material (for motion of impeachment). Impeachment motion should have different material and is an independent process altogether.

LIZ MATHEW: Did you expect the Opposition to take such a step?
I don’t want to comment on that. It had nothing to do with us.

SUSHANT SINGH: During the previous CJI’s term, you were part of the collegium that was appointing judges to the Supreme Court. Those appointments took a really long time. Under the present CJI — you were part of the collegium again — similar appointments were made in 24-36 hours. What is different now?
There was a lot of communication gap between the two heads — the Prime Minister of India, who has to take an ultimate call on clearing the files, and the (then) CJI. As far as the collegium is concerned, on the basis of the inputs given by the government, we take a call. Earlier, they would just sit on the files. That amounted to interference in the independence of the judiciary. I brought it to the notice of the CJI and asked him to do something.
Now, from what I understand, CJI Ranjan Gogoi has taken up the process of dialogue and that is what has facilitated the process of appointments.

SEEMA CHISHTI: Much has been made of the Prime Minister’s visit to the Supreme Court, where he was escorted by the CJI to Court No.1. He sat there, he had tea… and there was this dinner invitation as well. What is proper and improper in interactions between the judiciary and the executive, at a time when the court is hearing important cases concerning the latter?
It wasn’t a private visit where only the CJI and the PM were present. I was there, all the senior judges were there. (At the dinner), there were also judges from the neighbouring countries. It was part of the Constitution Day celebrations. Initially, it was being celebrated by the government on one side and the Supreme Court on another side. We said let’s have a common celebration. That was CJI Gogoi’s initiative. There was a formal dinner in the evening and a function at Vigyan Bhawan the next morning. Since the PM could not attend the event the next day, so the understanding was that he will attend the formal dinner with the invited delegates.
After dinner, the PM and the other delegates were taken to the court of the CJI, and thereafter to the CJI’s lounge… That was it. It was a routine, courtesy visit. Also, one is the PM, the other the CJI. Are they not mature enough to understand the limits they can go to? The present CJI has told us that he is going to have regular dialogue with the head of the nation. Crossing the line is when you meet people privately and discuss pending issues.

KAUNAIN SHERIFF M: You went with the majority view in the National Judicial Appointments Commission (NJAC) case. But in the landmark judgment you confessed that the collegium lacks transparency, accountability and objectivity. Have these issues been addressed?
We have started addressing these issues but not to the full extent. In the judgment I said I am not happy and I also said why I am not happy. I said we need glasnost and perestroika. We need transparency and we need to take corrective steps also.
What is lacking is a secretariat, both in the Supreme Court and the high courts. If there is a secretariat, you will have the opportunity to better verify the credentials of the candidates.

RAVISH TIWARI: Unlike all fundamental rights that have reasonable restrictions, there is no reasonable restriction set out by courts on Constitutional morality. Should the courts then adjudicate on matters of faith, like in Sabarimala? You were on the triple talaq bench. It was a split judgment. Is there a need to spell out the remit of Constitutional morality?
India is a secular country. Indian secularism is unique in its concept and implementation. It gives freedom to all citizens of the country to believe or not to believe. If they believe, there is freedom to profess what you believe, to proclaim it and to propagate it as well.

So, what are the restrictions on this? Under Article 25, four types of restrictions are given — this profession, practice and propagation shall not be in violation of public order, health, morality and fundamental rights. These are the four aspects. So, secularism has to be understood. It is not against any religion, it is not indifferent to religion; it has a welcoming stand. If the profession, practice and propagation of any religion crosses the lakshman rekha, the State can interfere by legislation or the court can interfere if it is brought to its notice.

Constitutional morality is an abstract term. The best moral principles of all religions have been incorporated in our Constitution. Constitutional morality comes under three aspects — equality, liberty and the dignity of the citizen. If this Constitutional morality is in any way violated, then there are two processes for it — the legislative process and the process where the constitutionality will be looked into.

RAVISH TIWARI: So, in the case of the Sabarimala and the triple talaq verdict, was the concept of Constitutional morality stretched too much?
I can’t comment on Sabarimala since the case is in the courts.

AMRITH LAL: There is this debate about Article 14 (equality of law) and Article 25 (Freedom of conscience and free profession, practice and propagation of religion) and 26 (freedom to manage religious affairs) — how Article 14 always gets privileged over the other two. Is this possible in a country such as India?
Let’s dissociate ourselves from the Sabarimala issue. Articles 14, 25 and 26 are not watertight compartments. It should be taken together and deliberated.

KRISHN KAUSHIK: In one of your last judgments, you had mentioned that the time has come to end capital punishment in the country.
Death penalty was challenged before the Supreme Court, as to whether it should be a punishment at all. A Constitutional Bench upheld it in 1980 in the Bachan Singh vs State of Punjab case. It was a unanimous decision of five judges. In the Bachan Singh case, even though the court upheld (death penalty), it said that it should be imposed in the rarest of rare cases. Lawyers do not give thrust on these aspects while arguing the cases. So a person can be awarded capital punishment only in the rarest of rare cases. The rarest of rare cases would apply both to the crime and the criminal.
In one judgment, the Supreme Court requested the Law Commission to revisit the whole thing. The Law Commission submitted a report in 2015 saying that it is high time that we removed death penalty altogether. They went to the extent of saying that even in the case of terrorism, it doesn’t find any meaning. But in the country’s context now they have said that except in the case of terrorism, it (death penalty) should be taken away… This is in their 2015 report. So it has nothing to do with my personal beliefs. Going by the report of the Law Commission of India, I said we should revisit whether we should retain it at all.

KRISHN KAUSHIK: In your long career in the Supreme Court, did you face any external pressure?
I have never experienced any pressure. I have been absolutely independent. I had absolute freedom while discharging my duties as a judge. I believe that is the case with the other judges as well. But in the matter of administration of justice, which is left with the CJI, in that there was a perception that he was not taking decisions independently.

SEEMA CHISHTI: What are some of the big reforms that the judiciary needs?
Firstly, I am of the firm view that the retirement age of judges, from the junior division to the Supreme Court, should at least be 70 years. It can go higher as well. Look at the experience a judge gains at the age of 62-65… At that age, a judge is in a better position to handle a case.

Secondly, despite introducing systems such as arbitration, mediation, conciliation, we have not been able to arrest the inflow of the cases. Unless we arrest the inflow, we cannot handle the pending cases. Of course, new cases coming in shows a faith in the system. Now it is up to the courts to find a better method. One is, of course, the number of judges — it’s inadequate. Look at the population of the country… the judge strength has to be doubled if you seriously want to address the issue of pendency of cases. Now, if the judge strength is to be doubled, the infrastructure has to be improved — a judge cannot function in vacuum.

Also, we need to look at alternative methods to litigation, as happens in many countries — like the jury, which is another kind of mediation or lok adalat. It’s a participative process. I think it is high time the country lays down a procedure prior to the institution of a proper litigation, be it on the civil side or the quasi-criminal side… Should there not be a filter mechanism? Unfortunately, a lawyer is paid only for arguing a case and not settling a case. This perception should also change. According to me, a lawyer who settles a case should be paid more.

RAVISH TIWARI: One of the criticisms we hear of the judiciary from the political executive is that they are spending disproportionate amount of time on matters which are not questions of law.
Issues which are to be executed by the political executive and the legislature or Parliament, maybe, should be left to them. The Supreme Court or the High Court should not be spending time on those issues. I’m very clear about that. Public interest in terms of the Constitution is the only area where the court should be concerned. The other concerns, what the public is interested in, are the concern of the government.

SEEMA CHISHTI: Films and several television serials have courtroom scenes. Is there any authentic portrayal of a court which you can recall, which spoke to you?
I’m a very poor viewer of films. But I can give you a general answer. What we see in films is not actually what is happening in court. There’s a particular show Judge & Jury in America. It broadcasts what is actually happening in court. I will be happy if people see the actual functioning of the court. It will give them an idea. They might take a decision that it’s better not to go to the court.

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