Justice Joseph | Mathrubhumi photo
It was unprecedented. On May 2, an anguished judge lamented openly in the country’s highest court that the respondents' lawyers deliberately attempted to prevent his bench from hearing a case. The judge also pointed out that the lawyers were unfair towards him.
The judiciary’s basic function is to ensure fair treatment to every citizen of the country on all matters. According to John Rawls, the American political philosopher, justice fundamentally means fairness. So, what could be worse if a Supreme Court judge, who is the ultimate arbiter of matters of fairness, himself complains of unfair treatment? And that too by lawyers who, as the judge pointed out, were officers of the court? Undoubtedly a typical example of the deliberate undermining of the judicial system.
This shocking lament was made in the open court by Justice K M Joseph while hearing the case of Bilkis Bano challenging the Gujarat government’s decision to release from prison 11 convicts who gang-raped her during the 2022 riots. Justice Joseph said this when the scheduled final hearing of the case had to be adjourned after the convicts’ lawyers objected to Bano’s affidavit on certain procedural grounds. Justice Joseph’s term as justice was to end on June 16, and his last working day was May 19. Though he offered to sit during the vacation to hear the case with his fellow justice, BV Nagarathna, the respondents’ lawyers and the Solicitor General Tushar Mehta expressed unwillingness to comply. Finally, the hearing was adjourned till July, which meant that Justice Joseph would not be hearing the case anymore.
Justice Joseph minced no words at this machination. “It is clear what is being attempted here…It is obvious you do not want this bench to hear the matter. But this is not fair to me… You are officers of the court…You may win a case or lose one. But, do not forget your duty to the court”. Justice Nagarathna also admonished a respondent's lawyer for deliberately attempting to mislead the court by making some wrong statements.
This disturbing incident of a Supreme Court judge himself complaining of attempts to undermine the judicial system from within is the second of its kind. In 2018, four serving judges of the apex court openly accused the then Chief Justice Dipak Mishra of attempting to subvert the delivery of justice. Unfortunately, no attempt has yet been visible from any quarter to address this growing cancer that is eating the vitals of our judicial system.
Though Justice Joseph is bidding farewell to the court with this unpleasant experience, he can certainly be proud of having completed a glorious career in which he held up justice, independence, fairness, truth, compassion, and courage. Let me add, at the risk of sounding provincial, Justice Joseph made Malayalis like me so proud by upholding the high values of our judicial system and constitution at a time when they are increasingly under siege. The Kottayam-born Kuttiyil Mathew Joseph dared to stand up to the powerful while there is a growing trend of judges sucking up to the high and mighty. Heading a ceremonial bench to bid farewell to Justice Joseph on the latter’s last working day -May 19- as the court closes for summer vacation three days after, Chief Justice DY Chandrachud said his expertise on matters ranging from commercial law to Constitutional law would be missed.
Not just at the end of his career, Joseph faced hostility from the powerful, even at his elevation to the apex court in 2014. The Union government and BJP saw him as an enemy due to his previous role as the Chief Justice of Uttarakhand. In 2016, Joseph quashed the imposition of President’s rule in the state run by the Congress-led government under Harish Rawat. In 2017, although he was eligible, the Supreme Court Collegium did not recommend Joseph to be elevated to the apex court, which provoked a strongly worded dissent by Justice J. Chelameswar. The former Kerala Chief Justice wrote that Joseph, a judge of high integrity, was the most deserving candidate to be elevated. In January 2018, the collegium recommended Joseph and Indu Malhotra to be elevated as judges of the apex court. But the first Modi government accepted Malhotra (of the Sabarimala judgment fame) but rejected Joseph. The then Law Minister Ravishankar Prasad cited three reasons for rejection. Joseph’s seniority was inadequate; Kerala had adequate while other states had inadequate representation in the apex court.
However, in July 2018, the collegium headed by Chief Justice Deepak Mishra repeated their recommendation of Joseph. The Supreme Court Bar Association also filed a petition signed by 100 lawyers before the apex court challenging the government’s rejection of Joseph. Several former judges like R M Lodha objected to the central government’s decision to dismiss the collegium’s recommendation. In August, the central government bowed to the collegium and elevated Joseph, who had by then become the senior most High Court Chief Justice in the country. He had served four years as Chief Justice of the Uttarakhand High Court after completing ten years as a judge in Kerala High Court.
In a landmark judgement that considerably strengthened Indian democracy, a five-member constitution bench headed by Justice Joseph in March this year ended the central government's monopoly authority in appointing the Chief Election Commissioner (CEC). The court directed that the President appoint the CEC and other Election Commissioners on the advice of a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India. In November 2022, the same bench admonished the central government's unnecessary haste in appointing Arun Goel as CEC. Goel, an IAS officer, was appointed CEC a day after he retired. However, while a public interest petition later came before his bench challenging Goel’s appointment, Justice Joseph recused himself, citing his earlier judgment. He also expressed unhappiness at moving against the appointments to such key posts after they were made.
In March this year, the bench headed by Justice Joseph reprimanded state governments for not taking action against hate speech. He was hearing a plea by a Kerala journalist, Shaheen Abdulla, seeking contempt proceedings against Maharashtra Police for not acting against inflammatory speeches by some Hindu fundamentalists. Recently he expressed concern at India falling to the rank of 161 among 180 countries in the Freedom of Press index.
Justice Joseph penned a dissent note in April 2022 to the Supreme Court’s three judge-bench headed by Chief Justice Ranjan Gogoi that gave a clean chit to the Modi government on the controversial purchase of 36 Rafale fighter jets from France. Justice Joseph’s note said the judgment would not stand in the way if the CBI wanted to probe the graft allegations in the Rs 59,000 crore deal with Dassault Aviation and India’s Defence Ministry.
There were landmark judgments while Joseph was a judge in the Kerala High Court. In 2013, the Kerala High Court’s division bench consisting of Justices Joseph and K. Harilal ordered the demolition of the 7-star Kapico Resorts in Vembanad Lake in Alappuzha constructed in violation of Coastal Regulation Zone rules. However, only a decade later, the demolition could actually begin.
Joseph, a graduate of the Govt Law College, Ernakulam, has carried forward the proud legacy of his late father and the illustrious former Supreme Court judge, K K Mathew, who was also the chairman of the Tenth Law Commission and the Press Commission. While Mathew was a judge in the Kerala High Court in 1970, Mathew wrote a 43-page dissent in support of EMS Namboodiripad in the defamation case against him in which the others -Justices Raman Nair and Krishnamoorthy Iyer- in the three-judge-bench found the Communist leader guilty. Justice Mathew was also a dissenting judge in the Supreme Court bench that decided the Kesavananda Bharati case, which restrained the parliament from altering the basic structure of the Indian Constitution.