Professor Satya Narayan Misra* in Bhubaneswar, June 20, 2023: The poet Ben Johnson wrote: In small proportions we just beauties see; and in short measures, life may perfect be. This adage perfectly fits into the short tenure that Justice KM Joseph spent as a judge in the Supreme Court before hanging his robe this month.

He will be remembered the most for the iconic judgment he delivered as CJI in Uttarakhand High Court in the Harish Rawat Vs UOI case in 2016. Striking down imposition of constitutional emergency under Article 356 Justice Joseph observed:’ Democracy and federalism are the essential features of the Constitution and are part of the basic structure. Any interpretation that we may place on Article 356 must help to preserve and not subvert their fabric.

The power vested in the President has all the latent capacity to emasculate the two basic features of the Constitution. Hence it is necessary to scrutinize the material on the basis of which the advice is given and the President forms his satisfaction, closely and circumspectly by using judicial review parameters like illegality, irrationality, and mala fides.’

The judge dismissed the contention of the AG that there can be no judicial review of the material on the basis of which the report of the Governor is based. He was bold enough to conclude that ‘this is a case where all canons of propriety were thrown into the wind and undue haste made by the Governor in inviting the President to issue the proclamation under Article 356(1) clearly smacked of mala fides.’

This judgment was reminiscent of Marbury vs Madison Case (1803) when Justice Marshal inked the concept of judicial review as per which judges have the power to strike down laws that they find to violate the Constitution. It was also a firm vindication of the Bommai judgment in 1994 where the Supreme Court laid down certain guidelines to prevent misuse of Article 365 like; testing majority on the floor of the house and if there is any material behind the proclamation, is the material relevant, and whether there was any malafide use of power.

But this judgment delayed his entry into the Supreme Court as a judge. The collegium also delayed its recommendation, prompting Justice Chelameswar to observe that by not elevating a highly competent judge like Justice Joseph, the collegium was setting an unhealthy precedent.

When his name was finally recommended by the collegium, the government showed its color by drawing reference to his being junior in the seniority list. Quite clearly, his judgment in Uttarakhand must have preyed on the minds of the Modi government to stonewall his selection!

In the Supreme Court, he would be remembered for his judgment on the appointment of CEC where he chided the government for not evolving a proper procedure for appointment as envisaged under Article 324(2). As a matter of fact, from Nehru to Modi, the appointees to the hallowed position of CEC or its members are the prerogative of the party in power.

The observation of Justice Joseph could not have been more pertinent and acerbic. ‘A pliable EC, an unfair & biased overseer of the foundational exercise of adult franchises, which lies at the heart of democracy, perhaps offers the surest gateway to acquisition and retention of power.’ Justice Joseph was fully aware how the party in power at the Centre during 1973-75 wanted a ‘committed, complicit judiciary’ & subsequent supersession of judges & imposition of emergency.

Institutional independence for him is the life breath of democracy. He suggested that a collegium consisting of the PM, LOP & CJI should, henceforth, decide the appointment of CEC/ECs. He would also be remembered for his bold judgment in tandem with Justice Nagarathna on 28th April when they directed states to suo moto register FIRs on hate speech incidents and proceed against the offenders, without waiting for someone to lodge a complaint.

They highlighted the specific provisions like Section 153A, 153B, and 295A of the IPC under which the offenders can be booked. The court said any hesitation on the part of police officers to abide by the order would be viewed as contempt. It may be recalled that in October, the Supreme Court had found it ‘tragic what we have reduced religion to’ and rued ‘the climate of hate ‘in the country. ‘Hate speeches will go away only when political parties stop using religion in politics.

‘Aristotle wrote: Courage is the mother of all virtues because, without it, you cannot consistently perform the others. Justice Joseph’s career as a judge in the high courts for nine years and Supreme Court for five years constantly reflect that courage, over and above his sharp intellect & considerable knowledge of constitutional & commercial law. He was like Justice HR Khanna, who ploughed a lonely furrow in ADM Jabalpur Case (1975) & observe that detention without trial during the imposition of emergency under Article 352 is an anathema to all those who love personal liberty.

He knew fully well that his dissent will cost him the post of CJI of India. Justice Joseph was a little lucky that his judgment in Harish Rawat Case (2016), bringing out how Article 356 can be grossly abused &smash the spirit of federalism into smithereens, did not cost him a judgeship in the Supreme Court, but was delayed.

As per the Third Schedule to the Constitution, the judges take an oath that they will ‘administer justice without fear or favor, affection or ill will & will uphold the Constitution. Justice Joseph, apart from being faithful to the oath he took as a judge leaves behind a luminous legacy of courage, conviction & clarity.

  • Prof Misra teaches constitutional Law

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