The independence of the Supreme Court is integral to the maintenance of a democratic way of life and the rule of law. It is not very difficult for a nation which is a democracy having a Constitution to slip into chaos, into just the opposite of democracy— Justice K.M. Joseph.
—
AS Justice K.M. Joseph retired on June 16 this year, it is worth reflecting on the significant impact he has made on the Indian judiciary through his judgments. From quashing the President’s rule in Uttarakhand to taking a tough stand against hate speeches, Justice K.M. Joseph has left an indelible mark on the history of Indian judiciary.
He is a native of Kottayam, Kerala, and was first appointed as a judge of the Kerala High Court in 2004. During his tenure as a high court judge, he upheld environmental regulations in Kapico Kerala Resorts Private Limited versus Ratheesh K.R. (2013), whereby he ordered the demolition of a seven-star resort project estimated at around ₹200 crore, which was constructed on a private island in the backwaters.
After serving as a judge for around 10 years, Justice K.M. Joseph was appointed as a Chief Justice of the Uttarakhand High Court in 2014, where he passed some remarkable rulings. In Harish Chandra Singh Rawat versus Union of India And Another (2016), he came down heavily on the ruling party for imposing President’s rule in the state while restoring the Harish Rawat-led Congress government.
During his tenure as a high court judge, while upholding environmental regulations, he ordered the demolition of a seven-star resort project estimated at around ₹200 crore.
In its 99-page judgment, the Bench comprising Chief Justice K.M. Joseph and V.K. Bist declared the President’s rule to be “contrary to the law laid down by the Supreme Court.” Evidently, the judgment did not favour the Centre, and this fact led to his transfer and delayed his elevation to the Supreme Court. This situation reminds us of 1977, when the Supreme Court Justice H.R. Khanna was not elevated to the position of Chief Justice of India (CJI) for standing up to the ruling party.
Also read: The what, why and how of the jallikattu judgment by the Supreme Court
It is worth mentioning that in 2019, Justice K.M. Joseph was also part of a three-judge Bench that dismissed a batch of petitions seeking the review of the Rafale judgment pronounced by the Supreme Court in 2018. In the said judgment, the court refused to direct a court-monitored probe into India’s agreement with France to purchase 36 Rafale fighter jets.
Pertinently, he also authored a separate judgment in Yashwant Sinha and Others versus Central Bureau of Investigation and Another clarifying that the 2018 verdict will not stand in the way of the Central Bureau of Investigation from taking lawful action.
He stated: “However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent in the writ petition (criminal) no. 298 of 2018 from taking action on exhibit P1-complaint in accordance with law and subject to the first respondent obtaining previous approval under Section 17A of the Prevention of Corruption Act”.
This year, in March, a Constitution Bench led by Justice K.M. Joseph, reformed the process of the appointment of Election Commissioners (ECs) in Anoop Baranwal versus Union of India. Now, unless the Parliament passes a new law pertaining to this, ECs shall be appointed by the President of India on the advice of a committee comprising the CJI, the Prime Minister, and the leader of the Opposition in the Lok Sabha (in case no such leader is present, then the leader of the largest Opposition party shall be selected).
Justice K.M. Joseph has recently voiced his disappointment with respect to the efforts of the respondent’s lawyers to adjourn the hearing in the Bilkis Bano case.
The said judgment is well-crafted and discusses the independence of the EC at length. It also emphasises how the abuse of the electoral process blatantly violates the fundamental principles of democracy. It elucidates: “The means to gain power in a democracy must remain wholly pure and abide by the Constitution and the laws. An unrelenting abuse of the electoral process over a period of time is the surest way to the grave of democracy.
“Democracy can succeed only insofar as all stakeholders uncompromisingly work at it and the most important aspect of democracy is the very process, the electoral process, the purity of which alone will truly reflect the will of the people so that the fruits of democracy are truly reaped.”
Further, the judgment also focused on how the EC’s unfair exercise of powers would be an anathema to the objective of Article 14 (right to equality) of the Indian Constitution. The Court opined:
“In the wide spectrum of powers, if the Election Commissioner exercises them unfairly or illegally as much as he refuses to exercise power when such exercise becomes a duty it has a telling and chilling effect on the fortunes of the political parties. Inequality in the matter of treatment of political parties who are otherwise similarly circumstanced unquestionably breaches the mandate of Article 14.”
He was also part of a three-judge Bench that dismissed a batch of petitions seeking the review of the Rafale judgment pronounced by the Supreme Court in the year 2018.
In April, a division Bench of the Supreme Court comprising Justice K.M. Joseph directed all states and Union territories to take suo motu action against hate speeches and register cases “even if no complaint is forthcoming”.
The court further directed to take appropriate action in law against the offenders immediately. It is imperative to mention that the said Order made it clear that the action will be initiated against the offender(s) irrespective of their religion in order to preserve and protect the secular character of our country.
In this context, the court remarked: “We further make it clear that such action will be taken irrespective of the religion that the maker of the speech or the person who commits such act may profess, so that the secular character of India, that is, Bharat as is envisaged by the Preamble [of the Constitution], is preserved and protected.”
A division Bench of the Supreme Court comprising Justice K.M. Joseph directed all states and Union territories to take suo motu action against hate speeches and register cases “even if no complaint is forthcoming”.
Notably, this Order was in furtherance of the Supreme Court’s Order passed last year in October while hearing a petition against the “growing menace of targeting and terrorising the Muslim community in India”. However, in its October Order, the court had passed a similar direction only to the governments of Delhi, Uttar Pradesh and Uttarakhand.
Therein, the court observed: “The Constitution of India envisages Bharat as a secular nation and fraternity, assuring the dignity of the individual and the unity and integrity of the country are guiding principles enshrined in the Preamble. There cannot be fraternity unless members of the community drawn from different religions or castes are able to live in harmony.”
In addition to these bold judgments, Justice K.M. Joseph has recently voiced his disappointment with respect to the efforts of the respondent’s lawyers to adjourn the hearing in the Bilkis Bano case, intending to have it heard by a different Bench.
He remarked: “It is clear what is being attempted here. I will retire on June 16. Since that is during the vacation, my last working day is Friday, May 19. It is obvious you do not want this Bench to hear the matter. But, this is not fair to me.”
As I end this piece on one of the courageous judges, I can’t help but remember the words of senior advocate Dushyant Dave during his interview with Karan Thapar. Dave said, “The Supreme Court will be much poorer in terms of intellectualism, courage and integrity without Justice K.M. Joseph.”
A Constitution Bench led by Justice K.M. Joseph reformed the process of the appointment of Election Commissioners (EC).
It goes without saying that Justice K.M. Joseph will be known for not only taking a daring stand against the State but also upholding constitutional values in his judgments.
As an advocate and a perpetual student of law, I yearn to see the presence of courageous judges like K.M. Joseph on the Bench.
