Another constitutional czar bids adieu

On Christmas Day in 2023, Justice Sanjay Kishan Kaul, the senior-most judge after the Chief Justice of India Justice D Y Chandrachud, retired. He began his judicial career in 2001 as a judge of the Delhi High Court. After his stints as Chief Justices of the Punjab & Haryana and Madras High Courts, he was elevated to the Supreme Court on February 16, 2017.

In his more than two decade long judicial career, he left an remarkable imprint of his intellectual brilliance and judicial craftsmanship. He was known for his deep understanding of the Constitution and his ability to articulate complex legal principles in a clear and concise manner. He was a tough judge for the unready and unprepared and a welcome law lord for the well prepared. His tall and gangling physical presence and booming voice added to the aura of the man as an imposing judge.

Not for nothing, he religiously insisted on a three-page synopsis on facts and law, no matter the complexity in the cause, and it became a hallmark in his court. The practitioners fell in line. And he said with conviction, “If a lawyer was surefooted, I do not think any cause should go beyond a 3 page synopsis before this court”.

"Thanks to this ruthless adherence, the practitioners came well-read and focused. The Bar should be eternally grateful for his insistence. All rambling went out of the window," said a Senior Advocate in anonymity.

It may suffice to pick up on just two causes he handled before the top court to communicate his imprint. Cases are legion from his stints before High Courts and too numerous to allude to. To mark but a couple again, his libertarian view of the Constitution was evidenced in the MF Husain verdict, where he warned,

“Our Greatest problem today is fundamentalism which is the triumph of the letter over the spirit. In a free democratic society tolerance is vital especially in large and complex societies comprising people with varied beliefs and interests. An intolerant society does not brook dissent. An authoritarian regime cannot tolerate expression of ideas which challenge doctrines and ideologies in the form of writings, plays, music or paintings. Intolerance is utterly incompatible with democratic values. This attitude is totally antithetical to our Indian Psyche and tradition. It must be realised that intolerance has a chilling, inhibiting effect on freedom of thought and discussion. The consequence is that dissent dries up. And when that happens democracy loses its essence.”

In the Perumal Murugan book ban case, he famously said,

“The choice to read is always with the reader. If you do not like a book, throw it away. There is no compulsion to read a book. Literary tastes may vary – what is right and acceptable to one may not be so to others. Yet, the right to write is unhindered.”

He was for free speech as free as constitutionally free it could be. Mark the word ‘constitutionally.’ During the COVID-19 pandemic, his colleague Justice Madan Lokur, after retirement, was overly critical of the Supreme Court for allegedly ‘bending’ to the administration. Kaul J took him on, in a speech to Bar Association in Madras High Court. He did not hold back.

“Criticism of a view point or a judgment is not a problem, but when imputations and grading start being made, I think we damage the very institution. The unfortunate part is that in some of us, those who have been part of the institution itself, there is a problem of ‘after me the deluge’. Which is that since we (retired judges) are gone, everything is going wrong. I will say that itself is a danger. People in the past, who speak about it, also have committed many mistakes and blunders.”

One of the cases he heard as a judge of the Supreme Court, related to the Collegium, of which he was a member. On November 7 this year, Justice Kaul said clearly to Attorney General R Venkataramani, who was appearing on behalf of the Centre,

“Not even  fifty per cent of names are being cleared either due to IB reports or your inputs."

He added,

"This pick and choose is creating a lot of difficulties and people who are senior are left out and 14 are such names. Out of nine, only five were cleared for Punjab & Haryana. Look at the significance for the State," he added.

He emphasized,

“We have expressed our concern to the Attorney General over lack of progress. The pendency is an issue of great concern as it is selectively done...We hope the situation does not come to a pass that the Collegium or this Court takes a decision which is not palatable."

Kaul J as a constitutionalist carried forward this theme from the bench till retirement day. He went hammer and tongs. He was an institutionalist in the mould of United States Chief Justice John Roberts. Yet, he did not hesitate to expose the chinks in the Central government’s ‘ostrich in the sand’ mentality. 

And it was not in mere words. His words prompted the Central government to oblige with multiple appointments, despite the delay. Kaul J played a major part in ensuring that the Supreme Court had the full complement of 34 Justices, and most High Court vacancies are also getting filled up to attend to the pendency pandemic. Kaul J used all his persuasive skills and ‘forceful not browbeating variants’, as a commentator wrote, to ensure compliance.

Not easy, considering the absence of a settled Memorandum of Procedure and pathological reluctance of the executive which has long felt ‘pushed out in a constitutional coup,’ as Justice Krishna Iyer said.

Typifying this vexed Collegium affair, on December 5, when the matter was deleted from his causelist, Justice Kaul said,

“I have not deleted it or expressed unwillingness to take it up. I am sure Chief Justice of India is aware of it."

The advocate appearing for a party submitted that the Court should call for a report from the Registry as it is very strange that the matter got deleted despite a judicial order fixing a date of hearing. To this, Justice Kaul said, "Some things are left best unsaid. We will see."

Another of the decisions he penned with passion, erudition and eloquence was the verdict in the Article 370 challenge.

A native of Srinagar, Kaul J was born to a Kashmiri Pandit family. He evocatively marshalled the historic nature of the provision and succinctly put it,

“The purpose of Article 370 was to slowly bring Jammu and Kashmir on par with the other states of India. The requirement of recommendation of Jammu and Kashmir Constituent Assembly cannot be read in a manner that makes the larger intention redundant."

In a poignant epilogue with a personal touch, Justice Kaul said that the valley of Kashmir carries a historical burden and has a social context that cannot be segregated in light of the evolving constitutional status of the region. “We, the people of Jammu and Kashmir, are at the heart of the debate,” Justice Kaul said, adding that Kashmiri people have carried the burden of being victims of conflict for several decades.

He added,

“In view of the inroads made globally and indigenous requests for truth and reconciliation commissions, I recommend the setting up of an impartial truth and conciliation commission. The commission will investigate and report on the violation of human rights by both state and non-state actors perpetrated in J&K at least since the 1980s and recommend measures for reconciliation."

Last but not least, his heart beat for the legal fraternity. A few quotes of significance may belong here.

“The legal fraternity stands as a beacon of hope, a knight in shining armour, a flag bearer of justice to give an ear to the cry of the litigants.” (In an article penned by him published in February 2022).

“The right to practice a profession, also being a fundamental right, a balance has to be maintained between the same and the requirement to monitor the legal profession for its better ethics.” (Bar Council of India v. Twinkle Rahul Mangaonkar).

As for the intersection between the citizen and the judiciary, he did not mince words, saying,

“The raison d’etre of contempt jurisdiction is to maintain the dignity of the institution of judicial forums. It is not a vindictive exercise nor are inappropriate statements by themselves capable of lowering the dignity of a Judge” (Suraz India Trust v. Union of India).

Justice Kaul can now demit office with the satisfaction of of having been a sincere, honest, diligent and well read judge, who did proud by himself and the institution he served with eminence.

The institution is poorer for the departure of yet another constitutional czar par excellence. We can only join the former Attorney General of India Senior Advocate KK Venugopal, to lament. He has now said more than once,

“Sixty five years is too early to retire for a Supreme Court Justice. With improved health standards and sound mental faculties, we are missing a trick in not tapping into their wisdom and experience."

One wonders when the powers that be would lend a willing ear. In the meanwhile, we bid adieu to Justice Sanjay Kishan Kaul, wishing him the best of luck with a longing that he had had a longer tenure.

Narasimhan Vijayaraghavan is practicing advocate in the Madras High Court.