Advocate Joseph Mandumpal pays rich tributes to Supreme Court judge Justice Joseph Kurian who retired on November 29 and has been a beacon of light to many during his illustrious judicial career.
“For God hath not given us the spirit of fear, but of power and love and of a sound mind”. (2 Timothy 1:7)
Man of Faith
A judge of the Supreme Court bid adieu on Thursday the 29th of November 2018. A man who is blessed with the spirit of power and love and indeed a man of sound mind with no fear to speak his mind. Justice Kurian Joseph adorned the highest pedestal of the Judiciary and still never lost his connect with Christ and was always a person who obeyed the first commandment to its letter and spirit.
While many landmark Judgments described his legal acumen, his practice of Christian faith unhesitatingly displayed by him throughout his journey in the Judicial career have inspired many within the Church to avoid giving excuses such as lack of time, hectic schedule, etc., for not adhering to the routines of prayerful life which is the mandate of a true Catholic within the four walls of the Holy Catholic Church. The practice of attending Holy Mass every day and observing lent and the prescribed fast and leading a Christ centred life has always been practiced by this learned judge of the Apex Court.
Born in 1953, Justice Kurian Joseph joined the bar in 1979 and practiced before the Kerala High Court. He served as Government Pleader in 1987 and as Additional Advocate General from 1994 to 1996. He was designated as Senior Advocate of the Kerala High Court in 1996. Mr. Kurian Joseph has also been Chairman of the Indian Law Institute Kerala Branch, Chairman of Indian Law Reports (Kerala Series) before becoming the judge of the High Court of Kerala and thereafter becoming the Chief Justice of High Court of Himachal Pradesh and going on to become a judge of the Honourable Supreme Court of India on 8th March 2013.
On the eve of Good Friday 2015, the brave judge stood for his faith and wrote to the Prime Minister of India, a letter of refusal to attend a conference that was organized coincidentally on Good Friday in the following words: “I regret my inability to attend the event as the conference coincides with the Good Friday ceremonies. Good Friday is a day of great religious significance to us, marking the crucifixion and death of Jesus Christ.”What else can describe his intense Christian faith and relationship with Christ?
From a Law Perspective
His view on death penalty for convicts and the need to abolish the same in India while writing a dissenting judgment, which is apparently his last judgment from the Supreme Court that was delivered in the case of Chhannu Lal Verma Vs. State of Chattisgarh, two days before his retirement, while commuting the death sentence awarded to the appellant to life imprisonment, wrote the following to tell his mind on death penalty:
“Having regard also to the said report of the law commission that the constitutional regulation of capital punishment attempted in Bachhan Singh Vs. State of Punjab (1980) 2 SCC 684 has failed to prevent death sentences from being ‘arbitrarily and freakishly imposed’ and that capital punishment has failed to achieve any constitutionally valid penological goals, we are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice.”
The other two learned judges, Hon’ble Justices Deepak Gupta and Hemant Gupta JJ however, agreed with the commutation aspect in the said appeal, but dissented from his view for a review of death penalty as the same was already upheld by the constitution bench in Bachhan Singh’s case.
Yet another example of his courage to speak his mind irrespective of the popular view and criticisms that could be hurled against him, especially in a case relating to hanging of Yakub Memon, the convict in the sensational Parliament attack case, when in July 2015 a special bench was constituted post-midnight that sat through the entire night unto dawn, wherein Justice Joseph had this to say: “Nothing can stand in the way of life of a person. Life is a constitutional right. Law is not helpless and this court is not powerless to protect the right to life. Law is for the man and if it is about the life of a man, no technicality can prevent this court from passing appropriate orders.”
He said that no life can be taken away without obdurate compliance with the procedure established by law and in Yakub’s case, according to him, there was a “procedural violation” since the two judges who had heard his review petition – Justices J Chelameswar and himself– were not part of the bench that dismissed the curative petition on July 21. However, his view stands as a dissenting view and the majority confirmed the death penalty in Yakub’s case.
Recently, he had no hesitation to record his dissent on the view of the then CJI Justice Deepak Mishra on the triple talaq case, wherein he expressed his view that “After the introduction of the Muslim Personal Law (Shariat) Application Act, 1937, no practice against the tenets of Quran is permissible. Hence, there cannot be any constitutional protection to such a practice (triple talaq) and, thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq.”
He nailed the contradiction by writing, “I also have serious doubts as to whether even under Article 142, an exercise of a fundamental right can be injuncted (stayed).”
The following were his views on the National Judicial Accountability Commission Act, 2014, which was held to be invalid and void by the Honourable Supreme Court after lengthy and anxious hearings:
Justice Kurian Joseph admitted collegium system is “not a healthy practice” and needed improvement. He also observed that there were some grave allegations on it such as, deserving persons being ignored, social and national realities being overlooked, certain appointments being purposely delayed to benefit vested interests in blatant violation of the guidelines, etc. His words were strong and as under:
“These allegations certainly call for deep introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution. It is not the trusteeship that failed, but the frailties of the trustees and the collaborators which failed the system. To me, it is a curable situation yet. There is no healthy system in practice. No doubt, the fault is not wholly of the Collegium. The active silence of the Executive in not preventing such unworthy appointments was actually one of the major problems. Therefore, the Collegium system needs to be improved requiring a glasnost and a perestroika, and hence the case needs to be heard further in this regard.”
The judge, who said the bench is bound by the ratio that independence of judiciary is part of the basic structure of Constitution, stopped himself from penning on merits of the National Judicial Appointment Commission Act (NJAC) after holding the Constitution 99th Amendment as unconstitutional.
“Since it is being held by the majority that the amendment itself is bad, there is no point in dealing with the validity of the creature of the amendment, viz., the National Judicial Appointments Commission Act, 2014. It does not exist under law. Why then write the horoscope of a stillborn child,” Justice Joseph said.
His career and life can very well be referred as the most ideal guide to any Christian who is conferred with any power to administer and render justice. On many occasions, he proved his human touch, both inside the court and outside it. In August 2018, he was part of a fund raising event for providing relief to the flood victims of Kerala and he sang in the said event. He was also seen personally involved in organising and packing flood relief materials at a distribution centre for flood victims of Kerala in New Delhi.
In a brief order passed in 2016, Justice Joseph had described the plight faced by a child whose parents were fighting against each other in courts. He had said: “‘We only want to remind both, the father and the mother, that they may fight endlessly but the one person who is sandwiched, disturbed, pained, shocked and if not spoiled is their daughter. If the future of the daughter is kept in mind by both the father and the mother, they will think of disassociating themselves from all other differences between them. We are sure the parties would be in a position to reach a workable solution with regard to custody. After all, the child needs both father and mother.”
The most recent matrimonial case where parties (husband and wife) failed to reconcile their differences, which ultimately led to the Supreme Court granting divorce, invoked his thoughts on family life in the following words.
In his last week at the Supreme Court, while granting divorce by mutual consent to a couple to ‘part as friends’, Justice Kurian Joseph, heading the Supreme Court bench, reminded them about the duty towards their child. In its order, the court said: “They will keep in mind that though they have severed their marital relationship, they continue to be parents for their daughter, forever. The child is entitled to the love and affection, protection and guidance of both the parents and their families. The child also has a duty to respect, love and reciprocate the love and affection from both the parents and their families.”
Personal Interaction With the Learned Man
On 1st August 2014, Justice Kurian Joseph participated in the holy mass at a small rented shed in Chennai, where around 15 parishioners of a very small church following the Syro-Malabar Rite of the Catholic Church namely, St. Alphonsa’s Church, Kodambakkam had assembled at 6 a.m. in the morning, wherein his spiritual involvement and a small talk of about five minutes had inspired the said smallest possible community gathered in the name of Christ, of which I was fortunate to be a part of, had the benefit of his guidance and experienced his spiritual presence.
Later on, in December 2014, I had the pleasure of forwarding a small book of memories written by me in tribute to my father, who was celebrating his 80th birthday, to Justice Kurian Joseph and the reply letter personally written by him touched me and moved me beyond words. The acts of reaching out to smallest people of the society and to spread the love of Christ and to encourage one’s faith in Christ through words and deeds and taking efforts to appreciate family bonding, are in fact some of the greatest virtues that I have personally seen in Justice Kurian Joseph.
Onus to Bring Back Change
The infamous press conference of senior most judges of the Honourable Supreme Court expressing dissatisfaction over the administrative functions of the Supreme Court as it stood then according to them, and the consequent comments from various sections of the judiciary and the media was also recalled by the retiring Judge as an ‘act of no regret’, as it was unavoidable according to him to save the basic pillar of the Constitution of India. Perhaps it is in this context that he could have said in his farewell speech as follows:
“The silence of lawmen does more harm to the society than the violence of lawless men.”
Joseph Mandumpal is an advocate of more than 23 years of practice as a lawyer in various courts across India. He founded the Chennai Law Associates – a law firm rendering exemplary service in all fields of law. He is also a guest lecturer at Tamilnadu Judicial Academy and author of many published legal articles.