Above: Former SC judge Justice Kurian Joseph (blue suit) with FM Arun Jaitley at a book launch ceremony where he spoke about the NJAC/ twitter.com/cambridgeindia

It is important that Justices do not resile from their own decisions on the Bench and that they observe the canons of constitutional rectitude promoting institutional integrity

By Upendra Baxi

I have expressed the view several times in the media that Indian citizens will never know the real reasons why judicial collegiums elevate certain constitutionally qualified citizens (or transfer certain Justices from one High Court to another) nor why the Executive appoints (and transfers) Justices. In either method, the play of residual discretion cannot be avoided. In reality, some sort of constitutional diarchy prevails, contrary to the propaganda that the views of the judicial collegium always prevail over the Executive.

Arbitrariness in judicial appointments should be progressively reduced and informed public debates provide the best searchlight for finding procedural means ahead, provided we realise that eradication of discretion is an impossible dream. However, a singular question is: should Justices in their superannuated public performances directly or indirectly express an altogether different opinion from the considered view they expressed in their judicial decisions?

The fact that they have in the past and in the present done so does not foreclose the issue of whether they ought to do so. Nor does it provide the normative wherewithal for regarding their out-of-office remarks as pertinent, but this has also occurred.

Both Justices Yeshwant Chandrachud and PN Bhagwati reiterated their apologies to the nation for the habeas corpus denial during the internal Emergency in l975, but what is unusual is the fact that the Supreme Court as a whole decided to overrule this decision in the recent case recognising right to privacy. Justice Dhananjay Chandrachud (for himself and writing for Chief Justice JS Khehar and Justices RK Agrawal and S Abdul Nazeer) held that “the judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence”. And Justice Sanjay Kishan Kaul termed it as “an aberration in the constitutional jurisprudence of our country”, adding that the majority opinion should be “buried ten fathom deep, with no chance of resurrection”. A certain poignancy and eloquence prevails in applauding the moral courage of dissent by Justice HR Khanna during the Emergency.

But what can be done when a Justice after retirement expresses a disagreement with his own ruling? Most recently, Justice Kurian Joseph (who I hold in high esteem) precisely, and ironically, did this in the presence of Union Finance Minister Arun Jaitley at the launch of a book “Independence and Accountability of the Indian Higher Judiciary”, written by Arghya Sengupta, director, Vidhi Centre for Legal Policy. He said he “was beginning to regret” his view on the National Judicial Appointments Commission (NJAC).

The learned Justice was a part of the Constitution Bench that in October 2015 held unconstitutional and invalid both the constitutional amendment and the NJAC Bill by a 4:1 majority. He had then explicitly 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.” Quoting US Supreme Court Chief Justice John Roberts that the court has “no power to gerrymander the Constitution”, he said neither has the Indian Parliament any power to do so. “The Constitution 99th amendment impairs the structural distribution of powers, and hence, it is impermissible.”

That was said on October 16, 2015, but now (upon retirement on November 28, 2018) he finds many a fault with the collegium system, as adversely affecting the independence of the judiciary in the matter of “seniority” and also by way of “delay”, it makes the “other way” more attractive. What made Justice Kurian Joseph hold an opposite view in the space of three years?

Obviously, no system of appointment of Justices would ever be perfect, but does that justify violation of judicial review and independence, the doctrine of basic structure and essential features which he himself so powerfully evoked on October 16, 2015? As late as February 6, 2013 (in an interview with Bar & Bench) Justice JS Verma bemoaned the fact that when the Executive was predominant, extraordinary judges “like Justices GP Singh, Chittatosh Mookerjee, PD Desai, MM Ismail, and Alladi Kuppu Swami were not brought to the Supreme Court. What was needed was that both the Judiciary and the Executive should have acted honestly and not arbitrarily”. Referring to his Second Judges case decision, Justice Verma said: “My 1993 judgment, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required.”

But in agreeing with Justice Madan Lokur’s “analysis and statement of law, in the matter of discussion and summarization of the principles on reconsideration of judgments”, Justice Kurian Joseph added: “I would like to add one more, as the tenth [consideration]. Once this Court has addressed an issue on a substantial question of law as to the structure of the Constitution and has laid down the law, a request for re­visit shall not be welcomed unless it is shown that the structural interpretation is palpably erroneous.”

How does any superannuated piece of wisdom enhance the process of structured bargaining? What happens now to this solid “structural interpretation”? And does it now complicate the reception of the nine points enunciated by Justice Lokur? In fact, he wrote: “The executive continues to have a vital role to play and in some cases, the final say in the appointment of a judge—the misunderstanding of the judgment is due to the completely and regrettably defeatist attitude of the Union of India and the States or their view that in the matter of appointment of Judges, it is their way or the highway.” He went on to say: “The Constitution of India is a sacred document and not a Rubik’s cube that can be manipulated and maneuvered by the political executive…to suit its immediate needs.”

R Venakatsen of the Frontline, wading through these interpretations, gave a further twist to this debate by asking in Law and Other Things: “Do the judgments in the Judges cases, decided by a larger bench, give scope for reforming the collegium by a smaller bench of five judges?”

This valid question requires hot pursuit, but I am more concerned with the issue of whether a judge ought to exp­ress his views contrary to those he had expressed in a binding judgment? It may be argued that Justice Kurian Joseph always remained uneasy about the primacy of the collegiums. He said in the judgment (although not directly agreeing with the salient criticism of the judicial collegium system articulated by Justice Jasti Chelameswar) that the question whether the “institutional trusteeship has kept up the expectations of the framers of the Constitution” warrants “deep introspection”. But that unease then did not result in validating the NJAC.

Justices upon retirement, of course, possess a right to freedom of speech and expression; indeed, this basic right is not even suspended during the tenure of judgeship, a constitutional office. But it is reasonably restricted in terms of the judicial oath under the Third Schedule. The oath no longer applies on superannuation, but do the obligations of constitutional morality cease for that reason? Is it justified to resile from one’s own decision on the Bench or to leave the labours of making sense of a post superannuation withdrawal of a constitutional reiteration, eminently well-argued and well-considered? Superannuated Justices, more than political actors, ought to observe the canons of constitutional rectitude and promote institutional integrity.

While the impact of the observations of a retired justice is for a later bench or court to decide, available evidence shows that extra curial utterances have the effect of: (1) weakening the authority of the institution as a whole; (2) weakening or diluting the level of support or endorsement by concurrence (even a concurring separate opinion) of an in­cumbent Justice by any adverse interlocution on superannuation; (3) weakening of the original discourse by different constructions placed upon the views of superannuated Justices.

In the event, one would seriously urge, particularly the Supreme Court, to enact a rule against allowing any citation or mention of any comment on judgments made by a retired Justice, as retroactive dissent is not permitted by the Constitution. Ideally, no retired Justice should include in the guarantee of freedom of speech and expression the right to retroactively express an opinion different than that embodied in her or his concurrence or dissent. If thought necessary, the judicial oath in the Third Schedule should be so amended. It is constitutionally sensible to speak about a judicial duty, subsisting even on ret­irement, requiring abstinence from expressing doubts about one’s own opinions and decisions which are based on the fullest possible hearing of all sides. The golden rule of constitutional decision-making is to leave the path of law strictly uncluttered for judicial successors.

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer