Justice KM Joseph : Indian Democracy & Secularism Will Always Be Indebted To Him

As an intellectual judge with deep knowledge in various fields of law, Justice KM Joseph has authored several notable judgments. Yet, the fight led by him against hate speech would be regarded as one of his most momentous interventions. On several occasions, he showed the prescience to diagnose hate speech as a cancer, which will create a hell out of our great nation if allowed to grow unchecked.

“Where is our nation headed? Where have we reached in the name of religion? This is tragic!”- he exclaimed while hearing a batch of petitions seeking to regulate hate speech. The characteristic serenity in his tone however did not mask the anguish which he was feeling. “State is impotent, state is powerless; it does not act in time. Why do we have a State at all if it is remaining silent?”, he asked on another occasion, exasperated at the inaction against hate speeches, especially the ones made by those aligned with the ruling party. He also flagged the issue of TV channels indulging in communal propaganda to raise their TRPs and questioned the Central Government for remaining as a “mute witness”. Justice Joseph’s concerns are shared by countless right-thinking citizens of the country who are aghast at the rise in the politics of hate and apprehend the descent of the Constitutional republic into a majoritarian state.

These concerns translated into a powerful order in which a bench headed by Justice Joseph directed the police authorities of all States/UTs to register suo motu FIRs in hate speech cases without waiting for any formal complaint, regardless of the religion of the maker of the statement. The brief but historic order noted :

"The Constitution of India envisages Bharat as a secular nation and fraternity assuring the dignity of the individual and unity and integrity of the country is one of the guiding principles enshrined in the Preamble. There cannot be fraternity unless members of the community from different religions or castes are able to live in harmony". At times, the obvious needs to be stated to serve as a reminder to those caught up in a communal frenzy.

A special mention has to be made about the sagacious manner in which Justice Joseph dealt with a PIL seeking to rename Indian cities named allegedly after Muslim ‘invaders’. The petition furthering a political agenda had the potential to be communally explosive. “You want to keep this as a live issue and keep the country on a boil? Fingers are pointed at a particular community. You run down a particular section of society?”, Justice Joseph asked the petitioner and advised him to refrain from filing petitions which can break the society . During the hearing, Justice Joseph said that he himself is a student of Hindu philosophy and asked the petitioner to not “belittle the great traditions of Hinduism” with bigotry. The bench, also comprising Justice BV Nagarathna (who was also equally vocal in expressing disapproval of the PIL), dismissed the petition after making some strong and relevant observations in the order on preserving secularism and fraternity.

“A country cannot remain a prisoner of the past…The history of any nation cannot haunt the future generations of a nation to the point that succeeding generations become prisoners of the past….for the smooth progress of the nation, actions must be taken which bond all sections of the society together”.

His firm stand in hate speech cases drew the wrath of certain sections. In March, Justice Joseph was subjected to a vicious online attack. It was a ridiculous and malicious campaign propagated by certain sections that Justice Joseph smiled at calls for the genocide of Brahmins. The basis of this was a twisted and out-of-context understanding of the court hearing. The bench was hearing a contempt petition filed against the State of Maharashtra alleging inaction by the police against alleged anti-Muslim hate speeches made during certain rallies. Appearing for the Maharashtra government, Solicitor General referred to some anti-Brahmin comments allegedly uttered by a DMK leader a year ago. This out of context argument amused Justice Joseph. Those who regularly attend his court would also vouch that Justice Joseph mostly has a smile on his face, even while saying the most serious things. Persons with vested interests, who have no understanding of the proceedings, presented a perverse narrative to vent out their ire against Justice Joseph.

However, the violent online trolling did not deter the judge. On a subsequent hearing, the bench led by him passed an order to extend the application of the order relating to suo motu registration of FIR in hate speech cases to all states (initially, the order was passed with respect to UP, Uttarakhand and Delhi). Justice Joseph also questioned the hastiness in the Karnataka Government’s decision to scrap the OBC reservation for Muslims ahead of elections, terming it “highly shaky and flawed”. He also expressed disapproval of the political statements which were made on this issue while the matter was sub-judice.

In the Bilkis Bano case, Justice Joseph acted fair to a fault when he allowed the final hearing to get adjourned beyond his retirement after the released convicts’ lawyers raised certain objections relating to the service of notice. Though it was clear to him that the attempt was to avoid the matter being heard by him, he allowed the adjournment, but not without expressing his anguish. “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. Do not forget that role. You may win a case, or lose one. But, do not forget your duty to this court”, he responded to the attempts to prolong the hearing till his retirement. Though he and his colleague Justice Nagarathna offered to hold special sitting during the vacations to hear the matter, the Solicitor General and the convicts’ lawyers did not agree.

Safeguarding democracy

Even before his elevation to the Supreme Court, Justice KM Joseph had attained nationwide acclaim when he, as the Chief Justice of the Uttarakhand High Court, quashed the Presidential rule imposed in the State in 2016. The judgment is the only instance of a High Court quashing a Presidential proclamation following the principles laid down in the SR Bommai judgment. “We are of the view that toppling of a democratically elected Government breeds cynicism in the hearts of the citizens, who had participated in the democratic process. It undermines the foundations of federalism”, Justice Joseph wrote in the judgment.

Since then, Justice Joseph has become a persona non grata for the Central Government. In 2017, the Centre refused to act on a Collegium resolution which accepted Justice Joseph’s request for transfer from the Himalayan state to a southern state on health grounds. In 2018, the Centre blocked Justice Joseph’s elevation to the Supreme Court and sat on the Collegium recommendation while accepting another proposal made in the same Collegium resolution. The legal community voiced strong protests against the Centre’s move. The Centre’s justifications for not elevating Justice Joseph came under heavy criticism (for more read here, here). Ultimately, the Centre caved in after the Supreme Court collegium asserted itself, and Justice Joseph was appointed as a Supreme Court judge in August 2018. But the delay cost him his seniority.

In the Rafale case, Justice Joseph’s concurring judgment allowing the use of newspaper reports as evidence is notable for its clinical analysis of press freedom vis-a-vis the Official Secrets Act. In Rafale Review, Justice Joseph wrote a separate judgment clarifying that the dismissal of the Petitions will not bar the CBI from investigating the corruption allegations.

His judgment in Anoop Baranwal vs Union of India on behalf of a Constitution Bench is path-breaking and will be remembered by future generations for safeguarding the independence of the Election Commission of India. The judgment held that Election Commissioners cannot be appointed by the Union Government in its sole wisdom and that the appointments should be based on advice given by a Committee consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. The Constitution Bench said that it was constrained to make this declaration since no law has been enacted by the Parliament over the last seven decades to specify the manner of appointing Election Commissioners as per Article 324 of the Constitution.

“A person, who is weak-kneed before the powers that be, cannot be appointed as an Election Commissioner. A person, who is in a state of obligation or feels indebted to the one who appointed him, fails the nation and can have no place in the conduct of elections, forming the very foundation of the democracy”, Justice Joseph wrote.

The judgment has several relevant observations regarding the dangers of majoritarian politics, the rise of money power and crime nexus in elections, and the decay in the role of the media.

“A brute majority generated by a democratic process must conform to constitutional safeguards and the demands of constitutional morality. A Democratic Republic contemplates that majoritarian forces which may be compatible with a democracy, must be counterbalanced by protection accorded to those not in the majority”, the judgment stated. The bench also expressed concerns at the hurried manner in which the appointment of Arun Goel as EC was carried out while the matter was being heard.

Other notable judgments

He led the Constitution Bench which modified the guidelines relating to passive euthanasia, clarified the application of adultery law to armed forces personnel, ruled that unstamped arbitration agreements are not enforceable(by 3:2 majority) and upheld the validity of laws allowing jallikattu and similar bull-sports.

In an important judgment from the standpoint of personal liberty, Justice Joseph held in Gautam Navlakha vs Union of India that Courts can remand undertrial prisoners to house arrest under Section 167 CrPC. In the judgment, Justice Joseph expressed concerns about the overcrowding of prisons and suggested that house arrest can be an alternative in appropriate cases.

He headed the three-judge bench which answered a reference to hold that the day of remand is to be included for considering a claim for default bail (Enforcement Directorate vs Kapil Wadhwan).

In Maharashtra State Board of Waqfs vs Shaikh Yusuf Bhai Chawla, it was held that all Muslim public trusts cannot be automatically regarded as Waqfs. In M/s Patil Automation Private Limited and others versus Rakheja Engineers Private Ltd, it was held that Section 12A of the Commercial Courts Act, which mandates pre-institution mediation, is mandatory and suits which are filed violating this mandate are liable to be rejected at the threshold. In DN Singh vs Commissioner of Income Tax, it was held that a thief or a carrier of goods cannot be regarded as the owner of the property as per Section 69A of the Income Tax Act. In Amar Nath vs Gian Chand, it was held that the Registration authorities cannot inquire whether the Power of Attorney was valid. On the day before his retirement, Justice Joseph delivered the judgment in Coal India Ltd vs Competition Commission of India, holding that State PSUs are not exempt from the Competition Act. His last judgment is notable for its interesting discussions on the whether free competition is repugnant to the concept of equitable distribution of assets.

Although he has written several other erudite judgments, as said in the beginning, he will be remembered most for his efforts to preserve our country’s secular fabric and its democracy. Even in his farewell address, he sounded a word of caution: “The Independence of the Supreme Court is integral to the maintenance of a democratic way of life and 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”.

Although the law officers of the Centre gave a subdued farewell to Justice Joseph in contrast to the other judges, his legacy will be fondly cherished by the citizens of the country who value the Constitution and its principles. The unhappiness of the executive is perhaps the most fitting certificate for the independence of a judge.

(Manu Sebastian is the Managing Editor of LiveLaw. He tweets @manuvichar. He may be reached at manu@livelaw.in)