Regret NJAC Decision, 2018 Press Conference A Story Of 'Lost Expectations': Ex-SC Judge Justice Kurian Joseph

Former Supreme Court Judge Justice Kurian Joseph, speaking at the India Today Conclave South on 'Judicial Overreach versus Executive Interference: How to Strike a Balance', stated that he regretted his decision in the National Judicial Appointments Commission (NJAC) case. Justice Joseph was a member of the Constitution Bench of the Supreme Court which struck down the 99th Constitutional Amendment which introduced the NJAC to replace the collegium system of judicial appointments to constitutional courts in October 2015 by a 4:1 majority. In his judgement, Justice Joseph had stated–

"Direct participation of the Executive or other non-judicial elements would ultimately lead to structured bargaining in appointments, if not, anything worse. Any attempt by diluting the basic structure to create a committed judiciary, however remote be the possibility, is to be nipped in the bud.”

This is the second time Justice Joseph is publicly expressing his regret towards his decision. In 2019 too, Justice Joseph had expressed similar sentiment. 

In his recent speech with India Today Conclave, he said–

"I regret my decision to quash NJAC now. I firmly believed, and I do still believe, that independence of the judiciary will be better protected if the Collegium system is followed. But how does the collegium system function? That is the big question. In fact, if you would have read the last paragraph of my judgement, I said that the system requires transparency. There should be secretariat. It's all in the hands of just one assistant...Only one person had files of all charges in the country. We said that that this is not how to should function. But having said that, and having upheld the independence of judiciary, and having struck down the NJAC, the picture I saw was disappointing."

Justice Joseph stated that every decision was taken by one person and it was simply endorsed by the collegium. He added–

"This is where I said that the commission appointed would be better in that sense."

Justice Joseph also spoke about the 2018 Judges Press Conference. This controversial and unprecedented press conference saw four senior Supreme Court judges- Justices Chelameswar, Kurian Joseph, Gogoi and Lokur hold a press conference at the residence of Justice Chelameswar. The said judges rose in revolt against their own Chief Justice of India Dipak Misra, alleging arbitrary decision-making in his administrative capacity, and in allocation of cases for hearing by Judges. The press conference exposed lack of in-built institutional remedies within the Supreme Court to resolve differences among the Judges, despite the existence of informal mechanisms, such as weekly meetings, and daily interactions apart from exchange of letters. The four Judges decided to go public on January 12, 2018 because their common letter to the CJI Dipak Misra, sent two months earlier, raising specific issues of contention went unaddressed by him. Speaking about the said conference, Justice Joseph said that "it was a story of great expectations, but it turned out to be a story of lost expectations". He added–

"There is something called 'Master of Roster', the Chief Justice. He decides where the cases to go, before which bench. This is a very important jurisdiction of the system. When I went for the press conference, I was clear that this will send some message about how the system should function in the Supreme Court and the High Courts. Unlike the High Court, where you have a little more homogeneity, in the Supreme Court, people come from different states. Even though we call each other 'brother' & 'sister', I don't know how much fraternity and warmth is there. We function in our own spheres there." 

Justice Joseph added that while in High Courts there were full courts held every two months or so, the same was not the case in the Supreme Court. Further, he added that such institutional decisions should not be taken by one person alone. 

Speaking about how the present Chief Justice Dr DY Chandrachud was also involved in various meetings held to ensure a better system for appointing judges, he added–

"After the press conference we had meetings for several days. We included several incoming Chief Justices including the present CJI DY Chandrachud. He was also part of the meetings on what corrective measures can be taken so there is a proper system instead of one person taking decisions. There were several questions and suggestions. We thought that these discussions would help all the future Chief Justices...There have been judges in Supreme Court, you won't believe, who never ever had a chance to sit on a constitution bench. On the contrary there are judges who have headed constitution benches successively...I did not see any signs of change thereafter. I pray that the present incumbent in the office, who was a part of these discussions and he himself made various suggestions, would keep in mind what he had suggested and take the institution forward in the interest of administration of justice."