Minutes after he got back from the Supreme Court as judge, one final time, Justice Kurian Joseph let his antipathy for “neutrality, silence and indifference” be known. “Silence of the law men do more damage to society than the violence of lawless men,” he told The Indian Express. A votary of bringing passion into the courtroom and blending it with a “correct” approach, he said, “I can hold my head high and tell the world that I have done my best.”
Justice Joseph, who retired on Thursday, started as an advocate in the Kerala High Court, and four years after being designated senior advocate in 1996, joined the bench in 2000. He served twice as Acting Chief Justice before going to the High Court in Himachal Pradesh as Chief Justice. His elevation to the Supreme Court came five and a half years ago.
Hailing from Thannipuzha, Kalady, Ernakulam and belonging to a Roman Catholic family, Justice Joseph’s father was a clerk in the Kerala HC. He is known to lead a disciplined life: “your discipline decides your destiny”. He was a seminarian briefly, before starting to practise. Even as a judge, he is remembered for how matter of factly, in the dead of night, he helped pack material for the flood-affected along with the juniormost member of the Supreme Court Bar Association this year: “Whether Kerala, Tamil Nadu, Assam or HP, if I see someone in distress, I think it is my duty to assist them.”
He said that every case he handled engaged him fully, and enabled him to stand for “the disadvantaged, the poor and the powerless”. His central idea was to move beyond the law and ensure “justice beyond law”. He said he particularly enjoyed being on the National Judicial Accountability Commission hearing, the triple talaq one and the one where he ruled on major changes in the way “cooperative institutions” function.
Justice Joseph has never made any bones about his views on awarding death throughout his tenure at the Supreme Court, since March 8, 2013. But his last judgement, he wrote a day before he retired, was about a need to ensure that death sentence is not given in a cavalier manner. He wrote: “Every death penalty case before the court deals with a human life that enjoys certain constitutional protections and if life is to be taken away, then the process must adhere to the strictest and highest constitutional standards…”
So has he ever been on a bench that has awarded death? “Never.” In the Yakub Memon case, where there was a midnight hearing, he was part of the bench “that was to examine whether the case should be reviewed or not. I was not part of the midnight hearing, but I was a part of the reason for that hearing as I said that person should get justice. Because his case needs to be heard and its points addressed. I was pained that a Supreme Court famous all over the world for Article 21 (right for life, dignity in life) for even non-citizens, should such a court spend time, extra time, to end a life? The right to review must be there. That is what pained me.”
A striking event in India’s judicial history was the press conference by four of its seniormost judges in January this year. “I did the right thing, it was the need of the hour and my duty. For those who do not know the background, it was not an emotional outburst, but we had done all we could have to make ourselves heard and we did that only as other options had been exhausted,” he said.
Did the press conference act as a silver bullet? “Not 100%, but it sent a message and things changed quite a bit, not just at the Supreme Court but in High Courts and other courts too. Some subject-wise bench allocation was done and some caution exercised.”
Joseph recalled how “there is no dispute about the ‘Master of the Roster’ and the Chief Justice is that in all courts. But it is not his individual choice alone. He should be guided by systems and practices.” He revealed that in the discussions then with former Chief Justice Dipak Misra, there was a suggestion that “there should be a committee of future Chief Justices, not for bench allocations specifically, but to generally guide the Chief and ensure that ill-informed decisions are not taken.” But that was “not acceptable” to Justice Misra, he said.
As Justice Joseph bows out to “start a new chapter”, he said it was time for the Supreme Court to not arrogate to itself the role of being the sole arbiter of Constitutional morality. “Law makers also know what is public good and public interest. The diversity they bring is not on court benches, so courts should not think only we can interpret the Constitution. Sometimes we should concede to law makers.”
On two areas that are crying for reform, Justice Joseph said, “a secretariat for selections and appointments for judges to the Supreme Court and High Courts is required, as is systems and processes to streamline methods which can ensure continuity and change as currently, when one Chief Justice comes, he has his team and then everything changes when his successor comes in. This needs to be reformed.”
Having made a mark in especially family matters where children are involved, Justice Joseph after retirement will stay back in Delhi and has a passion to work on helping arbitration evolve – to see arbitration as both, “mediated arbitration” and “conciliated mediation”, something that can help reduce litigation in courts.
On the question of the relationship between the executive and judiciary, he said, “It is people who eventually make the law and the Constitution. Governments implement it, and if there is ‘good governance’ why are courts needed? If the quality of law making is good, then too courts are needed.”
But for now, he added with a smile, “It is not healthy or advisable to have more interaction between the two (executive and judiciary) than there is now.”