A lawyer's poser to Justice Kurian Joseph

I take the liberty of posting the views of an advocate concerned about delivery of justice:

Dear Hon’ble Justice Kurian Joseph,

Unlike many former judges of the supreme court, even the distinguished ones, you shot into limelight soon after you retired. Not for reasons that did you proud.

You laid down your office a week ago, on the 29^th November, and four days later NDTV aired your interview. Sorry, you didn’t shine in the interview – mainly because you spat on the institution you served by attacking, without rhyme or reason or proof, the man who headed it as Chief Justice of India.  

You didn't tell the interviewer anything significant about your contribution as a judge of the supreme court for over five and a half years. Nor about any great judge of earlier times, in India, UK or the USA, who might have inspired you. Nor about improving the administration of justice in the lower judiciary.  All this may be ignored, if the purpose of your interview was merely to mark your retirement.  But not your criticism of a brother judge of the supreme court - Chief justice of India Dipak Misra - against whom you and three other companion judges held a press conference in Delhi last January.  It makes no difference that chief justice Misra had also retired when you faulted him on television.

Some may have presumed that a bit of decorum of a judge in office prevented you in January from revealing more about chief justice Dipak Misra though you possibly had details to disclose. But even after retiring, all you could say against the chief justice are pompous nothings, defamatory and perhaps contemptuous too.  This is the plain truth. May I please explain?

You spoke these words when talking to the television channel, to say what you saw wrong in chief justice Dipak Misra and why four sitting judges of the supreme court, including you, gathered against him and met pressmen in January this year: “The existence of judiciary should be independent. If it is not independent and if it is dependent, the independence of the judiciary which is the hall mark of Indian judiciary is gone. It is shaken……So we found that there has been external influences on the Chief Justice of India, and he has not been making independent decisions …. We discussed. We brought it to the notice of the Chief Justice of India that things are not going in the right direction. ‘You should correct your ways.’  We met him.  We brought to his notice in writing.  Then finally, without finding any result, as I used to say, the barking dog had to bite… We brought it to the notice of the whole nation.”

Before you were interviewed for television, on the same day Press Trust of India quoted you: “The then CJI was remote-controlled by an external source. There was some influence of some external source that was impacting the administration of justice.” When asked to specify the basis of your assertion, you told PTI it was the perception among you and three other judges who figured in the January press conference - and some unnamed judges as well. That’s all.  You told other journalists also about your 'perception' as the basis of your claim. Today’s edition of The Hindu reports that when questioned on proof to substantiate your ‘external influence’ theory you said, “It was a perception. There was a perception in the minds of not only the four of us but among several judges and the media.”  

       I am still searching for maturity and credibility in your statements.  For instance, you didn't reveal how you found that, apart from the four of you, several other judges too had an identical perception of an external influence driving chief justice Dipka Misra. Did those other judges tell you or was it your perception that they had the same perception like yours? Can you guess what an image of yourself you create in the minds of others, Hon’ble Justice Joseph? Litigants will hope you did not decide cases all through as a judge on the basis of  similar perceptions.

Do you realise what a damning criticism you uttered against India's head of the judiciary, with whom you served?  You know that independence is an essential quality of a judge in whom people can trust. If you fault Justice Dipak Misra for lacking in that trait, you portray him as a most unfit judge, even at district level. If you still believe you spoke with responsibility when decrying him, I need to quote more from your interviews to the press and to television and ask you a few things, so you become clearer to those watching you.

The television interviewer queried you on your view that chief justice Dipak Misra was “remote-controlled” and asked, “Who was holding the remote control?  Was it the influence of the government or was it political influence?”  Having been a supreme court judge, you gave this stunning reply to back up your charge: “I … we have no idea as to who was the person behind.  But we were quite sure that the Chief Justice of India was not taking decisions independently… I am not able to pinpoint as to who was influencing him.  But we were much sure he was under some influence.” Well, when you spoke these words you managed not to laugh. What more can anyone say, Hon’ble Justice Joseph?  

                                             

Did your January press conference curtail the ‘external influence’ emanating from an unknown source and affecting Justice Misra? You seemed to believe so when you told PTI recently that the presser “had an impact and things started changing for good during the remaining part of Justice Misra’s tenure as CJI.” So, you say that chief justice Misra was reforming himself and freeing himself from that ‘external influence’ as a result of your press meet in January. But this cause-and-effect story is hard to believe. 

If you cannot pinpoint that ‘external influence’ now, surely you didn't do it while sitting face to face with chief justice Misra in his chamber in the supreme court. By simple logic, three other judges who were with you at the January press meet could not also identify that 'external influence' up till now, since the four of you would have shared any such knowledge among you if even one of you gauged it. Then how did chief justice Misra banish that 'external influence' - when you did not know what it was or where it came from and so the chief justice did not have to fear you exposing him? Or, are you saying that after you and three other judges met pressmen last January the chief justice turned a new leaf on his own and got himself out of that 'external influence?' If indeed the chief justice did so, what kind of a real influence was that ghostly force when its victim could shake it off instantly?  You were a judge, that too of the supreme court of India. Do you sound convincing to yourself, leave alone others? 

      I was also puzzled by  some  thoughts you  expressed to the same interviewer at different stages of a sitting and to different interviewers, and I just couldn’t put two and two together. You told NDTV early on that you didn’t know if the government was the ‘external influence’. Towards the end of your dialogue, when the interviewer asked you, “Will future chief justices be not remote-controlled?” you quickly replied, “Governments will always try to somehow influence the chief justice because they are not happy at all …..”Did you, per chance, let the cat out of the bag? And then, in The Hindu interview of today, you praised both the present Chief Justice of India Ranjan Gogoi, who was with you at the January press conference, and prime minister Narendra Modi for the good rapport between them.

      If  anyone understood or misunderstood you as hinting that the former Chief Justice of India was under the influence of the present government, but that the same government maintains smooth honourable relations with the present Chief Justice of India, the listener or viewer could be left utterly confused. When I see these conflicting pictures coming from you, am I at fault sir?

       When you speak to the public, the public too will speak to you as I do. Also, you fairly told the television interviewer, “People have a right to raise questions”.  So, you won’t surely mistake the questions I have posed here. Your answers could help everyone understand you better.

     Finally, let me ask you.  The Contempt of Courts Act, 1971, defines ‘criminal contempt’ to include any act which (i) scandalises or lowers the authority of any court, or tends to do so; or (ii) interferes with or obstructs the administration of justice in any other manner, or tends to do so. Assume you were functioning as the Chief Justice of India, and that I met you and accused you of being remote-controlled by some external influence which I felt affected the administration of justice. Assume further I admitted that I could not pinpoint or prove who was influencing you and I still demanded that you correct your ways. Then would you not have hauled me up for criminal contempt, and would I not be close to being convicted? And if I laid the same charge against you publicly after you retired as such chief justice, what would you or anyone sensible think of me? Will you please enlighten me, Hon’ble Justice Joseph?

            Warm regards.

                                                                                                        
            R. Veera Raghavan

Justice Kurian Joseph and Justice C.S.Karnan

Justice Kurian Joseph was one of the judges on the seven-member Bench of the Supreme Court which found Justice C.S.Karnan guilty of foul-mouthing brother judges and handed out a six-month jail term to the latter. Karnan had accused the Chief Justice of the Madras High Court of not assigning appropriate cases to his Bench. He also blamed some judges for 'insulting' him because of his caste. He questioned their integrity in ample measure.

Kurian Joseph alongwith three other judges questioned the 'arbitrariness' of the Chief Justice of India in assignment of roster in various cases. He has also alleged that CJI was remotely controlled by an external force. Being remotely controlled is also a manifestation of corruption. He had earlier questioned the right of the then CJI Khehar to hold meetings of judges during Easter and asked if he would do the same during Diwali or Eid.

Allegations of Karnan and Kurian have many similarities. There is one vital difference though. Karnan had the courage of conviction to battle single-handedly whereas Kurian only toed the line of three brother judges in addressing the press regarding their grievances against the CJI , while in service. He 'disclosed' the remote-control aspect only after his retirement.

Kurian Thomas contradicts himself with ease. One day he says that higher judiciary is free from corruption. Just a few days later he argues that the CJI was remote-controlled. One day he insinuates that the government was remote-controlling the CJI. (Who else can do this now?) Soon thereafter, he hastens to play safe complimenting the prime minister and CJI for holding discussions between themselves.

Allegations of Kurian Joseph are serious though he has aired them irresponsibly and unprofessionally. These charges place the government and the Supreme Court in the dock. It is incumbent on them both to ask him to prove his charges or be prepared to be treated as he and other judges treated Karnan in the Supreme Court suo motu case against Karnan. A delinquent and loose-tongued judge of the Supreme Court deserves to be dealt with at least as firmly as a High Court judge.

Section 2(c) of The Contempt of Courts Act defines criminal contempt as follows:
 "Criminal contempt means the publication (whether
by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other
act whatsoever which-

(i) scandalises or tends to scandalise, or lowers or tends to
lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due
course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends
to obstruct, the administration of justice in any other manner."

The claim that the CJI was remote-controlled certainly lowers the authority of the court and calls for appropriate response from the court. 

Corruption in judiciary

Justice Kurian Joseph who retired recently from the apex court has told news reporters:

" I  will never really agree that there's corruption in higher judiciary. If it is in the lower judiciary, it is the state's concern. In the higher judiciary, it has not come to my notice."

The learned judge is wrong on two counts. First, absence of corruption in higher judiciary is too good to be true. What readily comes to mind is the rhetorical statement that absence of proof is not proof of absence. Kurian Joseph was among those who implicated directly or indirectly the then CJI  in a medical college corruption case. However, one fervently hopes that Kurian Joseph's view as stated now, on corruption is true.

Secondly, is corruption in the lower judiciary the concern of only state governments? Can the Supreme Court wash its hands off what is happening in lower judiciary? This amounts to judicial dereliction. Simultaneous display of overreach and dereliction by the apex court may be entertaining but is also deleterious in its implications for the society.

Misplaced sentiments

Every profession demands some qualities from its practitioners. A surgeon, for example, should have no fear of blood. The surgeon should not hesitate to remove the diseased cells. Similarly, a judge should not be afraid of enforcing the law and thereby achieving justice. The judge should not act like a priest whose job it may be to let off the guilty after hearing the confession. There are occasions when performance of priestly duties may amount to abdication of judicial obligations.

Though innocent lives need to be protected, it is not the duty of a judge to stave off the gallows for the fiendish criminal at any cost. Sympathy for the undeserving amounts to cruelty for the innocent. Religious sentiments may require liberal treatment even for the most obnoxious and the cruel. These sentiments are out of place in the realm of law and justice.

Attempts by a judge to convert the court of justice into a place for dubious sermons are despicable. Such errant judges are an insidious threat to dispensation of justice. The judge claims that 'after all, law is for man' as if this is a justification to throw justice to all the remaining men to the dogs. Perverted sentiments may satisfy one's desire for oneupmanship, but are not conducive to delivery of justice.

Such are the thoughts that come to one's mind on reading the following report in The Hindu:

"After all law is for man, and law is never helpless and particularly the Supreme Court, which is the repository of high powers and protector of life, shall not be rendered powerless," Justice Joseph observed.

Staying the death warrant, Justice Joseph said the apex court did not follow the mandatory rules of procedure while constituting the bench of judges which dismissed the curative petition.

Justice Joseph observed that the Supreme Court committed serious procedural violation under Order 48, Rule 4 of the Supreme Court Rules, 2013 by not including all the judges, including himself, who heard Memon's review petition in the subsequent curative process.

Dismissing Attorney General Mukul Rohatgi's argument that this was only a technical hitch, Justice Joseph said this procedural lapse almost cost a man his life and would lead to miscarriage of justice.

He said a prisoner, especially a death row convict, is entitled to the due process of law under Article 21 of the Constitution.

"The curative petition (of Memon) requires to be considered afresh in terms of Order 48, Rule 4 of the Supreme Court Rules, 2013," Justice Joseph held, stalling the case."

When enthusiasm becomes subversion

 Yakub Memon's case was taken up by a Division Bench of the Supreme Court consisting of Justices A.R.Dave and Kurian Joseph on 27th July. This petition has been filed after the normally available judicial remedies , that is Review Petition and Curative Petition, were dismissed by the Supreme Court.
According to "Supreme Court of India: Practice and Procedure", a curative petition has to be circulated among three senior most judges and such serving judges who were members of the Bench which passed the judgement / order, subject matter of the petition. The relevant extract is given below:

"F. Curative petition:
As laid down by this Court in the case of Rupa Ashok Hurrah
vs. Ashok Hurrah 2002 (4) SCC 388, even after dismissal of a review
petition under Article 137 of the Constitution, Supreme Court, may
entertain a curative petition and reconsider its judgment/order, in
exercise of its inherent powers in order to prevent abuse of its process,
to cure gross miscarriage of justice and such a petition can be filed
only if a Senior Advocate certifies that it meets the requirements of this
case. Such a petition is to be first circulated, in chambers, before a
Bench comprising of three senior most judges and such serving judges
who were members of the Bench which passed the judgment/order,
subject matter of the petition."

There is no reference to Curative Petition in our Constitution. This additional judicial remedy has been introduced by the apex court. Objective of this provision is to prevent miscarriage of justice and not to use this tool as a dilatory weapon.

The extract given above is clear that any curative petition has to be circulated, apart from three senior most judges, among members of the Bench which passed the judgement which is the subject matter of the petition. The reference here is not to the judgement on the review petition, but the judgement on the original petition.

It is easy for an enthusiast to get carried away. This is what happened to Justice Kurian Joseph. In the process, justice was inadvertently subverted. Justice Dave made a desperate observation that such interpretations as made by Justice Kurian Joseph will only lead to inconclusive judicial proceedings. (Justice Kurian Joseph was not in the Bench that dealt with the original petition, he was only in the Bench that took up the Review Petition.) Justice Kurian Joseph's contention is both substantively and technically incorrect, enabling, albeit unintentionally, a tragic abuse of the judicial process.

Consequently, the case is being referred to a larger Bench. Division Bench consisting of two judges has of late become dysfunctional leading to dilatoriness because of contradictory views of two judges. A fair judicial system needs to ensure that proven criminals do not enjoy some imaginary rights at the cost of natural justice to the victims. No judge, howsoever enthusiastic or rebellious, has a right to torpedo this salient principle.

What do we need: Judicial oversight or judicial activism?

Justice Kurian Joseph does not hesitate to express his views however extreme they may be. Delivering the 5th Lala Amarchand Sood Memorial Lecture on Judicial Legislation in salubrious Shimla, he asserted that

"Judicial activism is our duty against legislative adventurism" and went on to pronounce that  

'Courts dare and ought to say what the law is and what the law should be’. Legislature and executive may claim they are activist and it is judiciary which is adventurist. Though discussions are welcome, this rhetoric will only fan further polarisation of views. One of the desirable qualities in a judge is circumspection. It is not incumbent on a judge to be vocal about all his opinions. Perhaps the topic of the memorial lecture provoked the irascible judge. We need more judicial oversight rather than activism. (Oversight has two meanings and it is not necessary to stress which meaning is implied here.)

In a recent judgment of the apex court, Justice Kurian Joseph has been candid in declaring that misplaced sympathy will give room to suspect institutional integrity. His declaration that leniency for corrupt officials will weaken judiciary is unexceptionable. It is interesting to note that though a pious Christian, he transcended his religious dogma and concluded that there is no scope for reform of an official convicted of corruption.

All said, Kurian Joseph is a fertile source for many spirited discussions.