A matter of principle: The tenure of Justice KM Joseph

As the Supreme Court closed for its summer recess on May 19, 2023, the Court bade farewell to three of its helmsmen - Justice KM Joseph, Justice Ajay Rastogi and Justice V Ramasubramanian.

In a farewell held by the Supreme Court Bar Association later that evening, Justice Ramasubramanian observed that Justice KM Joseph commenced practice with a great disadvantage as the son of Justice KK Mathew, an eminent and distinguished judge of the Supreme Court. He quickly followed it up by observing that Justice KK Mathew’s greatest contribution was his son, and not his several landmark judgments.

This was not an observation made by a bystander, but by another distinguished peer. For Justice Joseph was undoubtedly a peer amongst peers. The deduction that must follow is that in the course of his long and distinguished career at the Bar and later on the Bench, Justice Joseph had successfully turned his disadvantage into an advantage.

Justice KM Joseph was born on June 16, 1958. Shortly thereafter, his father was appointed Advocate General of the State of Kerala in 1960. On June 5, 1962, he was sworn in as a judge of the Kerala High Court. Justice Mathew was elevated to the Supreme Court in October 1971. I need not here dilate on his varied jurisprudential contributions.

Justice Mathew demitted office in 1976. It took Justice Joseph another six years to qualify himself in law and join the Bar in 1982, initially under the tutelage of N Chandrasekharan at Delhi, and later, Justice Varghese Kalliath at Ernakulam.

He started off in right earnest in Immanuel Paul Chakkola v. Catholic Syrian Bank, where he unsuccessfully attempted to persuade Justice K Sukumaran to hold that the Catholic Syrian Bank and the Dhanalakshmi Bank were entities falling within the definition of State under Article 12 of the Constitution.

However, his thoroughness and industry did not go unnoticed as is clear from Justice Sukumaran’s remark that “Shri. K.M Joseph argued the matter with considerable force, supported by a thorough and detailed study of the working of the banking institutions and the developments in the constitutional law.”

This is a quality which runs like a golden thread throughout his career down to his last judgment in DN Singh v, Commissioner of Income Tax, which is a characteristically thorough exposition on the law of bailment vis-à-vis the issue of whether a thief can be treated as the owner of the goods stolen by him.

In Mathew Varghese v. Rosamma Varghese, as Amicus Curiae he assisted a five-judge bench of the Kerala High Court headed by Chief Justice Jawahar Lal Gupta on an important issue of whether a Christian father was obliged to maintain his minor child? In today’s day and age, the answer seems self-evident and does not appear to admit of any doubt. But in 1952, a Division Bench of the Travancore High Court had taken the view, following the common law, that this duty was merely an imperfect obligation and not an actionable wrong. This decision was later followed by a Full Bench of the Kerala High Court.

Overruling these outmoded precedents, Chief Justice Gupta, who spoke for the Full Court, went on to observe,

"The right to live and lead a life of dignity is a fundamental right in India. The child being non sui juris, the State and the Courts are bound to protect him. The father is a natural guardian. He is under a duty to maintain the child. The scriptures and the statutes recognize the right and the duty. The Courts in India, as submitted by Mr. K.M. Joseph, must shake off the ‘subtle alien bondage.’ We must go by the ‘native’ rather than the Westminster vintage values."

Shortly thereafter, he was elevated to the Bench of the Kerala High Court in October 2004. He went on to serve as Chief Justice of the Uttarakhand High Court in July 2014.

His finest hour was, perhaps, in Harish Chandra Rawat v. Union of India where a Presidential proclamation under Article 356 of the Constitution was assailed by the Chief Minister of the State before the Uttarakhand High Court.

The Congress had mustered an uneasy majority in the Uttarakhand legislature in the 2016 elections and had come to power in the State with Rawat as its Chief Minister. The Congress held the majority of 36 seats in the 70-member assembly with the BJP as its nearest rival with 28 seats. After the passage of the Appropriation Bill, 9 Congress MLAs switched sides and joined the BJP MLAs to submit a joint representation to Governor Dr KK Paul, demanding the dismissal of the Rawat Ministry.

Dr Paul wrote to the Chief Minister, and it was agreed that the latter would call for a floor test on March 28, 2016. In the meantime, proceedings under Schedule X of the Constitution were commenced against the 9 MLAs. These disqualification proceedings were to commence on March 27, 2016. The 9 MLAs moved the Uttarakhand High Court on March 25 requesting deferment of disqualification proceedings.

These petitioners were, however, dismissed. Finding that the dissident MLAs did not get any relief from the High Court, the Union Cabinet swung into action and called for the imposition of President’s Rule on March 27, purportedly on the basis of a sting operation video which allegedly showed Rawat engaging in horse trading. The effect of this was a double whammy hitting at the authority of the Governor’s decision to hold a floor test, and to cloud the authority of the Speaker to adjudicate the disqualification proceedings under the Tenth Schedule.

Chief Justice Joseph began by observing that the invocation of Article 356 ought to be seen in the larger canvas of the federal polity of India. The soul of the matter, said the learned Chief Justice, "is whether, in the federal/quasi-federal set-up we have, it is open to the Central Government to get rid of State Governments uprooting the democratically elected Governments and introduce the attendant chaos in the system undermining the confidence of a little man, who stands with a little white paper, in the words of Sir Winston Churchill, to cast his precious vote battling snow, the scorching heat and the rain.”

Finding that the Presidential proclamation was founded on material that was wholly extraneous, the Court quashed the same with the observation, "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."

In a memorable passage, Justice Joseph observed,

"The carrying out of the policies, ordinarily, in accordance with the manifesto, which Parties may take to an electorate, is an important function, which is to be carried out by the persons, who are elected. They stand in the danger of being worsted at the hustings should they fail before the people during the time they have been given. Any interference, which is not made legitimately, therefore, will essentially work out as an interference with the life of the common man, who has trusted his destiny with his representatives whom he has elected. It is this democratic principle, which would become the first victim when action under Article 356 is not legally and constitutionally premised."

To this day, this judgment remains the first and only instance of a High Court successfully quashing a Presidential proclamation under Article 356. Prior to this decision, the only instance of a High Court quashing a Presidential proclamation under Article 356 was in the Bommai case where a Full Bench of the Karnataka High Court had quashed a proclamation issued by President R Venkataraman. This decision was, however, set aside by the Constitution Bench in the Bommai case. By and large, High Courts have treaded wearily preferring to err on the side of caution.

The very next day, the Union of India carried the matter on appeal. The Supreme Court had initially directed that the judgment be kept in abeyance for a short while for want of a written order, the fault of which (if it all it is one) may perhaps be laid only at the door of the stenographer. Nevertheless, the judgment and the directions to hold a floor test were later upheld by the Supreme Court. Rawat survived the floor test, and the Presidential proclamation which stood revived by the order of the Supreme Court was eventually revoked. It is to Justice Joseph’s lasting credit that his timely intervention in Uttarakhand put a full stop to the political juggernaut which was freely knocking off opposition governments in the States through the specious device of Article 356.

Over two thousand years ago, the Greek philosopher Aristotle said that courage is the mother of all virtues because without it other virtues cannot be successfully pursued. One would think that this is true of judicial courage as well. There was, of course, a price to be paid. The Central government sat on Justice Joseph’s transfer to the Hyderabad High Court even though this was sought on medical grounds. Later, his elevation to the Supreme Court was stalled ostensibly on the grounds of All-India seniority. In his autobiography Justice for the Judge, former Chief Justice of India Ranjan Gogoi points out the lengths to which the Supreme Court had to go to ensure that the appointment of Justice Joseph to the Supreme Court was not scuttled.

"Eventually, in January 2018, when Justice Misra was the CJI, Justice Joseph was recommended along with Justice Indu Malhotra, a leading member of the Bar, for elevation to the Supreme Court Bench. However, the proposal of Justice Joseph ran into rough waters. There were objections in writing from the Government of India with regard to the all-India seniority of Justice Joseph to justify his appointment as a judge of the Supreme Court. The government was all set to notify the appointment of Justice Malhotra and exclude Justice Joseph. Here, I must give full credit to Chief Justice Misra. I have reasons to believe that he used strong-arm tactics i.e., threatening to resign, if Justice Joseph was not appointed."

The decision in Rawat is nevertheless a lasting testament to the institutional independence of our High Courts as a co-ordinate constitutional organ exercising judicial review over the acts of the executive and the legislature.

There is a growing impression that High Courts are merely pit stops en-route to the final destination: the Supreme Court. This has, perhaps, resulted in a situation where High Court judges prefer to play safe in matters of moment preferring to avoid the hazard (or the embarrassment) of being reversed by the Supreme Court.

It is time that the High Courts realise that in matters of constitutional adjudication they are second to none. The fact that the Supreme Court exists to correct any possible error must lend assurance rather than deterring the High Courts from carrying out an imperative constitutional duty.

Justice Joseph finally did make it to the Supreme Court in July 2018. A comprehensive survey of his varied work in the Supreme Court is clearly beyond the scope of this article. Nevertheless, the spotlights would undoubtedly include the fascinating concurring opinion in Yashwant Sinha where he pointed out that freedom of the press guaranteed under Article 19(1)(a) was coupled with a “deep sense of responsibility” to ensure that the information transmitted was free from bias. He observes that,

“Transmitting biased information, betrays absence of true freedom” adding that the Press must “realise that its consumers are entitled to demand that the stream of information that flows from it, must remain unpolluted by considerations other than truth.”

In Rajendra N Shah, he dissented from Justice Nariman’s view on the application of the doctrine of severability to save a portion of Part IX-B of the Constitution which was found to be unconstitutional for want of ratification of the states under Article 368(2) of the Constitution. He pointed out that the severed and saved provisions viz., Articles 243 ZR & ZS were entirely dependent on Articles 243 ZI to ZQ which the majority had declared invalid and that to hold the former valid was, in effect, resurrecting the latter.  His observation that “There can be application and modifications of something which exists. There cannot be either, when the elaborate provisions are to be treated as not born,” is indeed a compelling appeal to the brooding spirit of the law and to the intelligence of a future day.

In Gautam Navlakha, while opining that it was permissible to pass an order of house arrest under Section 167 CrPC, if the circumstances so required, he reminded us that personal liberty “must continue to remain the most cherished goal of any civilized state and its interference with the same must be confined to those cases where it is sanctioned by the law and genuinely needed.” 

Earlier this year, a Bench of Justice Joseph and Justice Nagarathna directed suo motu action be taken by the police to register FIRs against hate speech offenders, irrespective of religion, even if no formal complaint was forthcoming keeping in mind the secular fabric of the country as envisaged by the Preamble.

In Anoop Baranwal v Union of India, speaking for a Constitution Bench, Justice Joseph authored a characteristically painstaking judgment forging a solution to an interpretive void found in Article 324(2) which contemplated the enactment of a law by Parliament for the appointment of a Chief Election Commissioner and other Election Commissioners.

The fact that Parliament did not enact a law for over seven decades meant that the appointment process rested exclusively with the executive which was something which the founding fathers expressly deemed constitutionally undesirable. Political parties, he said,

"...would appear to betray a special interest in not being forthcoming with the law" for so "long as the party that is voted into power is concerned, there is, not unnaturally a near insatiable quest to continue in the saddle," adding that "a pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be , perhaps offers the surest gateway to acquisition and retention of power."

The Court eventually declared that the appointment would be made by the President on the basis of advice tendered by a Committee consisting of the Prime Minister, the Leader of the Opposition and the Chief Justice of India. 

This decision has attracted the usual band of conservatives who observe that judges have no business making law which is the function of Parliament. To them, we must say what Lord Reid famously said:

“We do not believe in fairy tales any more, so we must accept the fact that for better or worse judges do make law.”

As the curtains on Justice Joseph’s judicial career are wrung down to its terminus ad quem by a constitutional mandate, it may perhaps be worthwhile to reflect on the oath prescribed in the Third Schedule of the Constitution which requires a judge to uphold the founding document and the laws and to administer justice without fear or favour, affection or ill-will. We must remind ourselves that these are not merely sonorous expressions of constitutional solemnity.

In the final analysis, as Justice KM Joseph hangs up his robes, the legal fraternity wishes the learned judge their very best on his retirement from the Bench and would fervently hope that they would continue to have the benefit of his wisdom and learning.

Sharath Chandran is an advocate practicing at the Madras High Court.