Ex-SC Judge Kurian Joseph Seems To Have A Perennial Chip On His Shoulder

It is going to be well-nigh impossible to verify retired Supreme Court judge Kurian Joseph’s allegation that the previous Chief Justice, Dipak Misra, whom the Congress wanted impeached, was being controlled from outside.

Joseph, who had turned loquacious even before he retired from the bench by addressing a press conference last January along with three other collegium judges (current Chief Justice of India Ranjan Gogoi, and justices Madan Lokur and J Chelameswar), and by releasing letters of dissent on some issue or the other (read here, here), had this to say in an interview to The Times of India: “there were several instances of external influences on the working of the Supreme Court relating to allocation of cases to benches headed by select judges and appointment of judges to SC and high courts….Someone from outside was controlling the CJI, that is what we felt. So, we met him, asked him, wrote to him to maintain (the) independence and majesty of the Supreme Court. When all attempts failed, we decided to hold a press conference.”

While we cannot know whether this is true or not, unless some insider writes a tell-all book some time in the future, the reality is that CJIs have always faced pressures from the outside, whether from politicians, high-profile lawyers, or powerful corporate forces, and this is nothing unique to Dipak Misra. Justice Chelameswar himself has made caustic references to Rs 1 crore lawyers, who seem to have clout with the highest court.

During Indira Gandhi’s emergency, this pressure was overt; later on, when the collegium system was established and judges were appointed only on its recommendations, governments found out a neat way to influence judges, by offering them sinecures after retirement. An Indian Express report in mid-2012 said that “of the 21 judges to have retired from the Supreme Court since January 2008, 18 got jobs in different government commissions and tribunals. In many cases, judges accepted post-retirement appointments much before they formally demitted office — at least three of them when they still had many months of service left….In many cases, the names were recommended by the Chief Justice himself.”

Then there is the case mentioned by former Supreme Court judge Markandey Katju, who wrote in his blog that pressure from the Dravida Munnetra Kazhagam (DMK) – a vital component of the United Progressive Alliance (UPA) after 2004 – helped confirm a corrupt additional judge of the Madras High Court in his job. This apparently happened when a Congress minister fixed things up with the then CJI, R C Lahoti.

Apart from the allegation against Dipak Misra, Justice Joseph made several other statements that indicate that he has a chip on his shoulder about something or the other, and is probably highly political in his outlook.

He bragged that his elevation to the Supreme Court in 2013 was based on merit, since he had been passed up in 2012, when another Joseph, Justice Cyriac Joseph, was about to retire. He told the Times that the minority tag was a handicap to career growth. “I was also considered that way…but towards the end of my career, there was poetic justice. If I were to get the slot that fell vacant on Cyriac Joseph’s retirement, I could have become Chief Justice in 2012 before Justices Ranjan Gogoi and Madan B Lokur. …but I was selected on merit and was sworn in as an SC judge in 2013.”

The logic of this statement is dubious. If not being selected in 2012 and being selected in 2013 is a sign of merit, almost every judge who was overlooked once and then selected should wear this as a badge of honour. But, strangely, only Kurian Joseph thinks this is evidence of merit. And maybe he should ponder over the point that yet another Joseph, K M Joseph, has been made a judge just as he was about to retire. K M Joseph’s elevation was delayed by the Narendra Modi government, but he was appointed later after the collegium reaffirmed its choice.

Kurian then talks about how judges should be chosen purely on merit, and not on the basis of “caste, creed, religion or region of a person”. He adds: “when a person spends years as a judge of the HC, he actually forgets all biases and misgivings based on community, religion or cultural diversity. His focus is only to do justice.”

Two points worth making here. When there is no filter through which merit can be judged, and the idea of even a National Judicial Appointments Commission (NJAC) filter was rejected, how does Kurian expect only the meritorious to get through. In any event, when affirmative action has been widely supported in all spheres of activity, how can the higher judiciary alone be exempt from it?

The other point is his claim that judges are above religion, caste etc. In his own case, Kurian kicked up a big fuss in 2015 when former CJI H L Dattu asked SC judges to attend a conference of High Court chief justices on Good Friday. Many such events are held on holidays in order to avoid disrupting court work. But Justice Joseph was incensed enough to take his complaint even to the Prime Minister, even though he had nothing to do with the scheduling of the event. So, Justice Joseph’s claim that judges do not think religion at all is questionable. He apparently did. By taking his crib to the PM, he even made the issue political.

Kurian Joseph, who was part of the constitutional bench which overturned the NJAC in October 2015, also claimed in his interview that the functioning of the collegium had since improved. In his part of the majority NJAC judgement, Joseph had called for more discussions and transparency in the workings of the collegium to make it more effective, but when CJI Dipak Misra, after consulting all the collegium members, announced that decisions on higher judiciary appointments would be explained and put in the public domain, Joseph demurred – and this after agreeing to the same announcement earlier as part of the collegium. Sure, you can have second thoughts, but then why claim you are all for transparency?

The retired judicial eminence seems to have some chip on his shoulder. It is difficult to take all his remarks at face value.