On behalf of The Leaflet, Prashant Padmanabhan, Advocate-on-Record at the Supreme Court of India, spoke to Justice Kurian Joseph (Retd). on December 4, 2018 for an in-depth peak into the recently retired Supreme Court judge’s mind and heart, as well as his inspirations while deliberating on major court cases and delivering landmark judgments. Justice Kurian Joseph, who has been known as an upright and compassionate judge, retired as a Supreme Court judge on November 29, 2018.
Prashant Padmanabhan: Sir, today is the fourth death anniversary of Justice V R Krishna Iyer. Anything particular about J. Krishna Iyer, which you would remember?
Justice Kurian Joseph (Retd): I had a close association with him. Together, we handled a very sensitive issue between two communities in Kerala. He has spoken in the public meeting that I am the messenger of Peace.
Prashant Padmanabhan: Justice Krishna Iyer had suggested Appointment, Performance and Punitive Commission for Judges. Your thoughts?
Justice Kurian Joseph (Retd): How will you do it and who will do it? An Amendment in the Constitution may be required for review of performance of High Court Judges by the Supreme Court.
Prashant Padmanabhan: What about Supreme Court Judges?
Justice Kurian Joseph (Retd): I don’t agree for a committee outside the Constitution. It is not ripe for India. Indian democracy/policy has not reached that level of maturity. It could be left to the collegium on whose recommendation the CJI can withdraw work.
Prashant Padmanabhan: Mr. Fali Nariman had suggested that there should be a portrait of J. Krishna Iyer in the Supreme Court. We have given a memorandum. Do you think that it should be there.
Justice Kurian Joseph (Retd): I support.
Prashant Padmanabhan: Most memorable case in your position as a Judge of the Supreme Court or in the High Court?
Justice Kurian Joseph (Retd): Every single case I dealt with is memorable. Particularly those involving the weaker sections.
Prashant Padmanabhan: Most memorable case as a lawyer.
Justice Kurian Joseph (Retd): The one reported in (1988) 1 KLT 727. One paragraph encomium to me by the Chief Justice’s Bench. Special mention for excellent preparation by Shri Kurian Joseph who led the arguments. I was appearing as a private lawyer. When I was just eight years in practice. Chief Justice was J. Malimath.
Prashant Padmanabhan: You’ve worked with seven seven different Chief Justices. They are Hon’ble Mr. Justice Altamas Kabir, Hon’ble Mr. Justice P. Sathasivam, Hon’ble Mr. Justice R. M. Lodha , Hon’ble Mr. Justice H.L. Dattu , Hon’ble Mr. Justice T.S. Thakur, Hon’ble Mr. Justice Jagdish Singh Khehar and Hon’ble Mr. Justice Dipak Misra. Out of them, whom do you consider the best Chief Justice of India? And the reason why?
Justice Kurian Joseph (Retd): Not including the present CJI, because he is a sitting Judge. The best was Chief Justice R M Lodha, I would rate him the best because of his transparency, objectivity and clarity. Nobody has raised a little finger against him. He is the only CJI, out of the seven, who left without a single allegation.
Prashant Padmanabhan: If you consider the past two decades. 2000-2010 and 2010-2018, whom do you consider the best Judges?
Justice Kurian Joseph (Retd): Again, I will not include any sitting judges. Barring the sitting, I can mention CJI Lodha.
Prashant Padmanabhan: Can you name a few lawyers who are outstanding?
Justice Kurian Joseph (Retd): There are quite a few. But it won’t be proper for me to name them. I found myself to be fortunate sitting on the Bench listening to them. Starting with Ram Jethmalani who retired from the profession now and the doyens like Fali Nariman.
Prashant Padmanabhan: Now that you are retired, can you judge yourself? Justice Holmes has mentioned about “Inarticulate major premise” of a Judge. Would it be correct, if we say that “compassion” inspired by your deep religious leaning and a disciplined life, was your inarticulate major premise?
Justice Kurian Joseph (Retd): Justice tempered with mercy and righteous indignation against injustice.
Prashant Padmanabhan: Was there any occasion/s in which your beliefs/convictions conflict with your duty as a Judge? In tough cases like death penalty, abortion and divorce? Where there is sharp division even among the Judges of the United States Supreme Court.
Justice Kurian Joseph (Retd): I have done justice to my oath. My oath is to uphold the Constitution and the laws without fear or favour affection of ill-will. My faith is my personal matter.
ON DEATH PENALTY
Prashant Padmanabhan: How did you deal with death penalty cases? Have you ever upheld a death sentence as a Judge either in the Kerala or Himachal Pradesh High Courts or in the Supreme Court?
Justice Kurian Joseph (Retd): I have commuted a death sentence to life in 2014. I was a puisne Judge then siting with Justice C.K.Prasad.
Prashant Padmanabhan: Did you think twice before allowing abortion of a womb? There is an Order dated July 28, 2015 wherein you were part of the Bench, allowing a 14-year-old rape victim to abort the 24-week pregnancy, ‘only if there is a serious threat to her life’, if the child is not aborted.
Justice Kurian Joseph (Retd): That is the mandate under the Medical Termination of Pregnancy Act, 1971.
Prashant Padmanabhan: How did you feel when a 10-year-old child handed over a “thank you card” for settling the disputes between his warring parents? It formed part of your judgment?
Justice Kurian Joseph (Retd): It was a very satisfying moment in my career as Judge. The child was able to touch justice. When he got justice, he was happy.
ON CERTAIN DECISIONS OF THE SUPREME COURT
Prashant Padmanabhan: What is your opinion about some of the Supreme Court Judgments; one dealing with section 377 IPC (reading down adult consensual homosexuality in private) and section 497 IPC (on adultery). There was some observation regarding women’s sexual autonomy?
Justice Kurian Joseph (Retd): I have my difference of view on both. I don’t agree to both.
Prashant Padmanabhan: Whether homosexual marriages are to be allowed? If that stage comes?
Justice Kurian Joseph (Retd): I don’t agree. It defeats the purpose of marriage.
Prashant Padmanabhan: What according to you should be included in ‘Constitutional morality’? There was a recent comment by the Law Minister that it should not differ from Judge to Judge.
Justice Kurian Joseph (Retd): Liberty, equality and dignity.
Prashant Padmanabhan: LGBT community challenged the application of section 377 IPC on those grounds. Liberty, equality and dignity. Your comments on that?
Justice Kurian Joseph (Retd): There may be some cases where all these principles will apply. If there is a case where one of the constituting factors of constitutional morality conflict with the other, then the constitutional morality principle should not be applied.
ABOUT GIVING EMPLOYMENT TO AN ACID ATTACK VICTIM
Prashant Padmanabhan: Before coming to Judge’s selection and appointment, I want to ask you about another very important appointment made by you. sometime in December, 2013 when you were a junior Judge of the Supreme Court, you had given appointment in the Supreme Court to an acid attack victim. How did you look at this incident?
Justice Kurian Joseph (Retd): Looking at her plight, I could not find a better person to opt for appoint, though there were several requests pending with me.
SELECTION OF JUDGES
Prashant Padmanabhan: A three-judge Bench of Supreme Court comprising of the present CJI, Justices Rohinton F Nariman and Navin Sinha, in a judgment dated October 12, 2017, in Writ Petition (C) No. 454 Of 2015, titled Ms. Indira Jaising v. Supreme Court of India, through Secretary General, laid down the criteria for selection of lawyers as senior advocates. Supreme Court notified the guidelines and now applications are also invited on August 6, 2018. A total of 105 lawyers have applied and now a notice dated November 13, 2018 is issued inviting suggestions of other stake holders. Any comments on that?
Justice Kurian Joseph (Retd): That is now the law. It is done to ensure objectivity and transparency.
Prashant Padmanabhan: Why can’t we have such an objective criteria for the selection and appointment of Judges to the High Court and Supreme Court? This will be a big step in ensuring transparency.
Justice Kurian Joseph (Retd): Who said it is not there? It is there in the selection of Judges. These factors are assessed by Collegium.
Prashant Padmanabhan: Is it in consonance with democratic principles that a Collegium of a few Judges alone selects Judges for appointment?
Justice Kurian Joseph (Retd): It is done only to ensure independence of judiciary. Person appointed should not feel obliged to someone outside the system who may have an interest in the outcome of litigation.
Prashant Padmanabhan: Can we have system of appointment similar to UK or USA?
Justice Kurian Joseph (Retd): Not for India as of now.
Prashant Padmanabhan: Sir, in the Constitution Bench judgment wherein NJAC was held unconstitutional, you’ve observed that the Collegium system needs to be improved requiring a “glasnost” and a “perestroika”. Are you satisfied with the working of the Collegiums system at present? Has the improvement been made?
Justice Kurian Joseph (Retd): Still not. Though quite a few improvements are made.
Prashant Padmanabhan: What is your opinion regarding appointing senior advocates instead of only retired High Court/Supreme Court Judges to different Commissions, quasi judicial bodies etc?
Justice Kurian Joseph (Retd): Very welcome suggestion.
Prashant Padmanabhan: Any opinion on retired Judges opting for different commissions?
Justice Kurian Joseph (Retd): There is no harm in it.
Prashant Padmanabhan: Any comment about a cooling-off period between retirement and fresh appointment?
Justice Kurian Joseph (Retd): Where the political executive perceives it as a charity, one should not take up it as assignment. No judge shall go after them for appointment. The Government should go after them.
Prashant Padmanabhan: Is the position of a High Court Judge as important and almost on par with the Judges of the Supreme Court, in view of these following provisions:
Appointment by same authority Art.124, Art.217. removal by same procedure Article 124(4) and Article 217(1)(b) which refers to Article 124(4). Bar on discussion in the House. Art.122 and Art.212. According to Article 127(1) of the Constitution, sitting Judges of the HC can act as ad hoc judges of the Supreme Court?
Justice Kurian Joseph (Retd): Both are Constitutional Courts. Supreme Court has no supervisory control over the High Courts.
Prashant Padmanabhan: Do you think that there should be supervisory jurisdiction for the Supreme Court over High Courts?
Justice Kurian Joseph (Retd): Any such change may affect Federalism.
Prashant Padmanabhan: Can a sitting Judge of the Hon’ble High Court be punished for contempt of Court?
Justice Kurian Joseph (Retd): Yes.
Prashant Padmanabhan: Can a Judge of the Supreme Court be punished for contempt of Court?
Justice Kurian Joseph (Retd): Yes. Why not?
Prashant Padmanabhan: What is your view on the creation of four regional Courts of Appeal as final appellate courts, while restricting the Supreme Court of India to its true function as a Constitutional Court, as suggested by Mr. K K Venugopal?
Justice Kurian Joseph (Retd): I would agree.
Prashant Padmanabhan: Would it help in reducing the heavy burden on the Supreme Court?
Justice Kurian Joseph (Retd): Not only reduction of pendency in the Supreme Court. It would ensure speedier justice to People.
Prashant Padmanabhan: Sir, Mr Fali Nariman has suggested increasing the age of retirement of Judges from 65 to 70. Do you agree? Should it be same for High Court and Supreme Court Judges or different?
Justice Kurian Joseph (Retd): I agree. To me, every judicial officer, starting with Civil Judge Junior Division to Supreme Court Judge should retire by the age 70. I agree and take it forward.
Prashant Padmanabhan: Previously. there had been many High Court Chief Justices who refused to accept SC judgeship. In your career as a Judge, have you ever met any single HC Judge who declined to accept a SC berth?
Justice Kurian Joseph (Retd): I have not seen.
Prashant Padmanabhan: How often did you refer to Constituent Assembly Debates? In India, initially the Courts avoided referring to CAD, but gradually it changed. Was there occasions in your tenure as a Judge, to refer to CAD?
Justice Kurian Joseph (Retd): Yes, many cases. Particularly NJAC.
Prashant Padmanabhan: CJI T S Thakur had a plan and constituted five-Judge benches on a regular basis. How far it is a good idea, in reducing pendency?
Justice Kurian Joseph (Retd): Certainly a good idea; any such move is welcome.
Prashant Padmanabhan: What is your opinion about giving more importance to drafting skills and reducing the time for oral arguments?
Justice Kurian Joseph (Retd): I would agree.
Prashant Padmanabhan: What about fixing a time limit for any case? Irrespective of which senior is arguing? Only Justice R.F. Nariman’s judgment in Md. Ariff v. Supreme Court, (2014) 9 SCC 737, fixed 30 minutes for review in death penalty cases. Isn’t it wise to fix such time limit for all final hearing matters?
Justice Kurian Joseph (Retd): Has any Court been able to limit? In practice, no Bench was able to stick to that time limit. Because to deal with life of a person, it requires details regarding the application of the parameters.
Prashant Padmanabhan: Will it be better if lawyers submit written submissions or argument notes before the final hearing date?
Justice Kurian Joseph (Retd): I agree .
Prashant Padmanabhan: What is your view on Courts, discharging the board if other cases cannot be taken up? This will save lot of time of lawyers.
Justice Kurian Joseph (Retd): Ideal thing to do. I have always done that.
Prashant Padmanabhan: Sir, the present Chief Justice of the United States Supreme Court, John Roberts, made some interesting remarks to the Senate Committee on the Judiciary, during his confirmation hearing. To quote him: “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.” Do you think that sometimes Indian Judges are crossing the limit of an umpire?
Justice Kurian Joseph (Retd): In the Indian context, the Judge is not an umpire.
Prashant Padmanabhan: Do you think that such type of intense examination of the candidate before being appointed as Judge is good for India? If not by lawmakers, by an Appointment Commission as is being done in England?
Justice Kurian Joseph (Retd): That is being done in the Subordinate judiciary. Not there in High Courts or Supreme Court.
Prashant Padmanabhan: Recently, Judge Brett Kavanugh has undergone an intense procedure in the hearing before Senate Committee on the Judiciary, because of the allegations about his sexual misconduct and CNN called his confirmation as a national disgrace. Do you think that such a transparent system of appointment will go a long way in ensuring transparency in judicial appointments?
Justice Kurian Joseph (Retd): 100%.
Prashant Padmanabhan: Sir, a liberal Judge in the US Supreme Court, J. Ruth Bader Ginsberg, commented that she will move to New Zealand, if Trump is elected President. J. Ruth Bader Ginsberg is now 85-year-old and still continuing in office. Perhaps to maintain the equilibrium. Any comment?
Justice Kurian Joseph (Retd): I have no comment.
Prashant Padmanabhan: Recently, President Trump has described a certain Judge as an “Obama Judge”. Chief Justice John Roberts rebuked President Trump for that but the President reiterated it. Is it imaginable in India?
Justice Kurian Joseph (Retd): Such public attributions, nobody would dare to do it in India.
Prashant Padmanabhan: In the United Kingdom, Judges of Supreme Court have declared their backgrounds. Two Judges, Lady Black and Lord Briggs have proudly declared that they are the first lawyers in the family. Do you think that the first generation law graduates are having a disadvantage in legal profession in India?
Justice Kurian Joseph (Retd): I don’t think so. I am a first generation lawyer.
Prashant Padmanabhan: Sir, then exceptions emphasise generality. There is a general perception that one needs a godfather to be successful in the legal profession.
Justice Kurian Joseph (Retd): Perception is there. But that is not correct.
Prashant Padmanabhan: What is your opinion regarding selection of junior advocates without any experience at the Bar, to positions as Judicial Magistrates/Civil Judge junior division/still called Munsiff in some States?
Justice Kurian Joseph (Retd): I am against it.
Prashant Padmanabhan: Do you think that the word Subordinate (Judiciary) in the Constitution be replaced with some other words dignified word like Civil or Criminal Court?
Justice Kurian Joseph (Retd): Subordinate to whom? subordinate to the High Court. Not subordinate to the High Court Judge.
Prashant Padmanabhan: Mr. Gopal Subramanium has opined that all Courts are Constitutional Courts. Your opinion?
Justice Kurian Joseph (Retd): In a sense, yes.
Prashant Padmanabhan: What is your view on Government segregating the name of Gopal Subramanium from a list sent by collegium? Was it proper?
Justice Kurian Joseph (Retd): Government should have referred back the recommendation.
Prashant Padmanabhan: Any comment on Justice Jayant Patel’s resignation?
Justice Kurian Joseph (Retd): No.
Prashant Padmanabhan: What is your message to fellow Judges?
Justice Kurian Joseph (Retd): To be humane, clear and consistent.
Prashant Padmanabhan: What is your message to lawyers, especially young lawyers?
Justice Kurian Joseph (Retd): To be clean in conscience and clear in thoughts.
[Editor’s note: The Leaflet will hold an exclusive interaction with Justice Kurian Joseph (Retd). on December 7 in New Delhi, and will continue this conversation. Readers are welcome to post their comments and any questions that they would like us to ask Justice Kurian Joseph (Retd).]